Petition for Writ of Certiorari — Piedmont Aviation, Inc. v. Crocker

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No——2 5 96 JUL 1 81995

In THE

Supreme Court of the United States

OCTOBER TERM, 1995

PIEDMONT AVIATION, INC.,

Petitioner,

Vv.

HoBART N. CROCKER, JR.,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

JAMES T. LLOYD THOMAS E. REINERT, JR.

Betry LEACH HAWKINS Counsel of Record

USAIR, INC. MORGAN, LEWIS & BOCKIUS

2345 Crystal Drive 1800 M Street, N.W.

Crystal Park Four Washington, D.C. 20036

Arlington, VA 22227 (202) 467-7084

(703) 418-5216 Counsel for Petitioner

Piedmont Aviation, Inc.

pest

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether backpay from an employer is a legal remedy

creating a right to a jury trial under the Seventh Amend-

ment of the United States Constitution, when sought for

an implied statuory hiring claim under the Airline De-

regulation Act of 1978?

(i)

LIST OF PARTIES TO THE PROCEEDING

PURSUANT TO RULES 14.1(b) AND 29.1

Pursuant to Supreme Court Rule 14.1(b), Petitioner

Piedmont Aviation, Inc. certifies that the names of all

parties to this proceeding appear in the caption of this

Petition for a Writ of Certiorari.

Pursuant to Supreme Court Rule 29.1, Petitioner Pied-

mont Aviation, Inc. certifies that: (1) Piedmont Avia-

tion, Inc. was merged into USAir, Inc. effective August 5,

1989, and USAir, Inc. continues as the surviving entity

and corporate successor to Piedmont Aviation, Inc. (2)

USAir Group, Inc. is the parent of USAir, Inc. and a

publicly-traded corporation. (3) Another publicly-traded

corporation, British Airways, plc, holds convertible pre-

ferred securities of USAir Group, which constitutes 21.9%

of the voting interest of USAir Group, Inc.

TABLE OF CONTENTS

Page

SE CE IO © ctiiciecivconutinctnnpicdasasopnsnavshesanetss 2

STATEMENT OF JURISDICTION ..............0..00...002..... 2

CONSTITUTIONAL PROVISIONS AND STATUTES

RRR TEAS SY Ge CT SF ON 2

STATEMENT OF THE CASE ....00......0.2........0000.200000c0000 3

REASONS FOR GRANTING THE PETITION ........... 6

I. THE QUESTION PRESENTED IS ONE OF

IMPORTANCE TO BACKPAY CLAIMS IN

EMPLOYMENT ACTIONS UNDER VARIOUS

PT i hicitea dis eicchniniandicnigbiastikaoreisebittnaien ‘lime 7

II. THE COURT OF APPEALS’ DECISION

CONFLICTS WITH THE DECISIONS OF

THIS COURT AND OTHER CIRCUITS CON-

CERNING THE EQUITABLE NATURE OF

ph Fa EE SRSA i SRR a SRR Lene Ot 11

A. The Court of Appeals’ Misreading of Terry.. 12

i eee et een 13

2. “Incidental To Or Intertwined With”

SRS i eet care aa 16

B. The Conflict In The Circuits —.......222000020.. 17

Ill. THE COURT SHOULD GRANT CERTIORARI

TO CLARIFY THE APPLICATION OF

TERRY TO BACKPAY CLAIMS AGAINST

IE siliolicich dnptivinrvcinsadGicansabtcniieesNcuaiapiobuaiious 20

NID Ulich canis dlilbnasenn orleilewnenobibionientis 22

TABLE OF CONTENTS—Continued

Page

APPENDIX:

Opinion of the Court of Appeals for the District of

Columbia Circuit, entered March 3, 1995 ................ la

Order of the Court of Appeals for the District of

Columbia Circuit concerning errata in opinion,

GURNNGE FEGNGR GO, BOOP 505s eee 30a

Judgment of the Court of Appeals for the District

of Columbia Circuit reversing in part and remand-

ing for jury trial, entered March 3, 1995 ~............... 3la

Memorandum Opinion of the District Court for the

District of Columbia denying jury trial, entered

BO Be TIN eis & ee 33a

Order of the District Court for the District of

Columbia striking demand for jury trial, entered

WO Ss iain hb ici Bei TR ae Be 4la

Memorandum Opinion of the District Court for the

District of Columbia containing findings of fact

and conclusions of law, entered July 22, 1993........ 43a

Order of the District Court for the District of

Columbia entering judgment for defendant after

bench trial, entered July 22, 1998 ~........0000000000000... 53a

Order of the Court of Appeals for the District of

Columbia Circuit denying Appellee’s petition for

rehearing, entered April 19, 1995 ....0 54a

Order of the Court of Appeals for the District of

Columbia Circuit denying Appellee’s suggestion

for rehearing in banc, entered April 19, 1995........ 55a

;

TABLE OF AUTHORITIES

CASES Page

Alaska Airlines, Inc. v. Brock, 480 U.S. 678

fy FECA RSR IAT eae Nee SOE MIC SDE Nica ctl BEC ial 4

American Airlines, Inc. v. Lockwood, 115 S. Ct.

RE RST TEER SRT strane Anite H 2. SEW (fe:

Bowdry v. United Airlines, Inc., 1995 U.S. App.

LEXIS 16021 (10th Cir. June 28, 1995) ............. 20

Bowen v. Massachusetts, 487 U.S. 879 (1988).... 14

Bowen v. United States Postal Serv., 459 U.S. 212

CR is cictiiinct Sarai taco aati ter ee 14

Commissioner v. Schleier, 115 S. Ct. 2159 (1995).. 15

Consolidated Rail Corp. v. Darrone, 465 U.S. 624

(| PRESETS BRI Rl UL Ae eh Mest ants Be IMO IONE AUD Na 15

Cor v. Babcock & Wilcox Co., 471 F.2d 13 (4th

BS... SRS eat ORD POT OS IE TPM Ler GOD Side a 9

Crocker v. Piedmont Aviation, Inc., 933 F.2d 1024

$8 TE tA. 4 pe eon ae cre IMeeciier same 4

Curtis v. Loether, 415 U.S. 189 (1974) .........000002... 15

DelCostello v. International Bhd. of Teamsters,

462 U.S. 151 (1983) .......... Bio Sh Slagle RY Sani eM 14

Franklin v. Gwinnett County Pub. Sch., 503 U.S.

BL... eR ARRR ane bees Ur cee mertea TCR Mee) nets eM Gin 5, 14

Harmon v. May Broadcasting Co., 583 F.2d 410

(8th Cir. 1978) .. eed 9

Hornsby v. St. Louis ‘Southwestern ‘Ry. Co. “963

yaa s3e0 tee Ga eee aa 10, 16

Hubbard v. Administrator, EPA, 982 F.2d 531

CO Ga se a 13, 18

Landgraf v. U.S. Film Prods., 968 F.2d 427 (5th

Cir. 1992), aff'd, 114 S. Ct. 1483 (1994) ............ 9

Lincoln v. Bd. of Regents, 697 F.2d 928 (11th

Cir.), cert. denied, 464 U.S. 826 (1983) _........... 9

Long v. Trans World Airlines, Inc., 913 F.2d 1262

ee rN i ee 4

Lorillard v. Pons, 484 U.S. 575 (1978) ................... 9

: McDonald v. Piedmont Aviation, Inc., 625 F. Supp.

le Oe a ee 4

Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S.

ee ee os i a ee

TABLE OF AUTHORITIES—Continued

Page

Moore v. Sun Oil Co., 686 F.2d 154 (6th Cir.

ys IU ee i ES 9,10

Pandazides v. Virginia Bd. of Educ., 13 F.3d 823

ee S| er rae ee 7,19

Ramos v. Roche Prods., Inc., 9386 F.2d 43 (1st

Cir.), cert. denied, 502 U.S. 941 (1991) ............ 9,10

Robinson v. American Airlines, Inc., 722 F. Supp.

757 (D.D.C. 1989), aff'd, 908 F.2d 1020 (D.C.

CII SUID ii stnerstiempdcmetattbicediincnsnssbiaiahiiistibanieinils 4

Santiago-Negron v. Castro-Davila, 865 F.2d 431

eo" Fe | er eee eee ee Ce 10

Schwartz v. Gregori, 45 F.3d 1017 (6th Cir. 1995),

petition for cert. filed, 68 U.S.L.W. 3892 (June

18, OCR) Tile, Ge siitieteeetttee.. 7, 18,19

Setser v. Novack Inv. Co., 638 F.2d 1137 (8th

Cir.), cert. denied, 454 U.S. 1064 (1981) .......... 10, 21

Slack v. Havens, 522 F.2d 1091 (9th Cir. 1975)... 9

Smith v. Barton, 914 F.2d 1330 (9th Cir. 1990),

cert. denied, 501 U.S. 1217 (1991) ........................ 20

Snider v. Circle K Corp., 923 F.2d 1404 (10th Cir.

|) REASON Rea TO as: Bi ee ae a ae 9

Teamsters Local No. 391 v. Terry, 494 U.S. 558

UIUEE nsnicisccseteipsieebeliabil -iaeanediilaletdsala ah Ma iil passim

Townsend v. Indiana Univ., 995 F.2d 691 (7th

Sir. TIDY sesviccinsssecccsesseadeiiieleaeee ee 10, 15

Troy v. City of Hampton, 756 F.2d 1000 (4th

Cir.), cert. denied, 474 U.S. 864 (1985) ............ 10, 19

Tull v. United States, 481 U.S. 412 (1987) -.......... 17

United States v. Burke, 504 U.S. 229 (1992) ........ 8,9, 15

Vaca v. Stipes, 886 U.S. 171 (1967) ........................ 13

Waldrop v. Southern Co. Servs., Inc., 24 F.3d 152

eh WR Se | | eee re ne aE ST 7,10,18

Walton v. Eaton Corp., 563 F.2d 66 (3d Cir.

|. gj enna He eRP IIE Ye Cine Miro PES EN 9

Wilson v. Belmont Homes, Inc., 970 F.2d 53 (5th

Cle, TOR ciieidiktn keene 20

Wooddell v. International Bhd. of Elec. Workers,

ete Ss. | eer ree 12, 14, 16, 21

vii

TABLE OF AUTHORITIES—Continued

STATUTES Page

a esidnansdocieemngnbensivesneihaiiies 13

I i conics cinadehcalecdbninieesinimnlincttionnneainsiontiila 2

a a caclsigiatinemineenunge 2

i Si as imaeemminainionies 2

I a slsaieieaileien 8

I cael eeenetnlnercliaied 9

Rehabilitation Act of 1973, 29 U.S.C. § 701 et.

hak ch cin 2k inciasiathclkneah ieineaiaabionleaain 6, 10, 11, 18, 19, 20

Employee Retirement Income Security Act

(ERISA), 29 U.S.C. § 1001 et seq. .................... 18

Veterans Reemployment Rights Act, 38 U.S.C.

Oe i cilia ss daiietpilinlindegieetisibin’ 6, 10, 11, 20

Civil Rights Act of 1866, 42 U.S.C. § 1981 ........... 6, 10, 11,

15, 20

Civil Rights Act of 1991, 42 U.S.C. §1981a _........ 9,11

Civil Rights Act of 1871, 42 U.S.C. § 1983 ...... 6, 10, 11, 20

Title VII of the Civil Rights Act of 1964, 42

er A I oc aticdieain cainiendegirancnonieese 8,15

Airline Deregulation Act of 1978 (“ADA”), 49

eta AE NI "ors sadcsincenininieninatblendannecanadinenens passim

MISCELLANEOUS

Barbara L. Schlei & Paul Grossman, Employment

Discrimination Law 1418 (2d ed. 1983) ............. 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. ————

PIEDMONT AVIATION, INC.,

Petitioner,

, s

HoBarT N. CROCKER, Jr..,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Piedmont Aviation, Inc. (“Piedmont” or “Petitioner” )'

by its undersigned counsel, respectfully petitions for a

writ of certiorari to review the judgment of the Court of

Appeals in this case.

1 Piedmont Aviation, Inc. was merged into USAir, Inc. effective

August 5, 1989, and USAir, Inc. continues as the surviving entity

and corporate successor to Piedmont Aviation, Inc. The courts

below chose to maintain Piedmont Aviation, Inc. as the named

party. (App. 2a)

REPORTED DECISIONS

The opinion of the Court of Appeals (App. 1a-29a)

is reported at 49 F.3d 735. The opinions of the District

Court (App. 33a-40a, App. 43a-52a) are unreported.

Prior proceedings in the case have been reported at:

696 F. Supp. 685, 741 F. Supp. 241, 743 F. Supp. 1,

933 F.2d 1024.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered on

March 3, 1995. (App. 3la-32a) A petition for rehear-

ing was denied on April 19, 1995. (App. 54a) The juris-

diction of this Court is invoked under 28 U.S.C. § 1254(1).

The Court of Appeals had jurisdiction of the appeal

pursuant to 28 U.S.C. § 1291. The District Court had

jurisdiction under the Airline Deregulation Act, Pub. L.

No. 95-504, § 43, 92 Stat. 1750, 49 U.S.C. App. § 1552

(1988), and 28 U.S.C. § 1331.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The following constitutional provisions and statutes are

involved in this case:

United States Constitution, Seventh Amendment

In suits at common law, where the value in con-

troversy shall exceed twenty dollars, the right of trial

by jury shall be preserved, and no fact tried by jury,

shall be otherwise re-examined in any Court of the

United States, than according to the rules of the

common law.

The Airline Deregulation Act

The duty-to-hire provision of the Airline Deregulation

Act of 1978, Pub. L. No. 95-504, § 43(d)(1), 92 Stat.

1750, 49 U.S.C. App. § 1552(d)(1) (1988), provided:

Each person who is a protected employee of an air

carrier which is subject to regulation by the Civil

Piss. iia animist bet

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 em-

ployees which held a certificate issued under Section

1371 of this Appendix 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.

The provision recently has been recodified at 49 U.S.C.

§ 42103(a), Public Law 103-272, 108 Stat. 1093, 1159.

(App. 2a, n.1) Because the prior decisions in this case

have used the original codification, and the statutory

modifications do not affect the jury trial issue presented,

Petitioner continues to refer to the prior codification at

49 U.S.C. App. § 1552.

STATEMENT OF THE CASE

Although this case arises within the narrow confines of

the “duty-to-hire” provision of the Airline Deregulation

Act of 1978 (“ADA”), Pub. L. No. 95-504, § 43, 92

Stat. 1750 (1978), it presents a broad issue of whether

a constitutional right to jury trial applies in employment

actions for backpay.

Under the duty-to-hire provision of Section 43, air

Carriers in existence prior to deregulation were placed

under an affirmative statutory obligation to hire “pro-

tected” airline employees before hiring other persons from

outside the airline’s workforce. (App. 2a) “Protected”

employees were those employed in the airline industry

for four years prior to October 1978 who involuntarily

lost employment. (/d.) However, Congress did not

specify an enforcement mechanism for Section 43, nor

create any express right to backpay or other remedies

from hiring carriers. As the Court of Appeals correctly

noted, “we have no statutory provision whatever creating

the cause of action or identifying the available remedies.”

(App. 26a)?

The federal courts have implied a cause of action to

enforce the duty-to-hire provisions and applied the normal

range of federal court remedies available in employment

actions. (App. 35a-36a) See Long v. Trans World Air-

lines, Inc., 913 F.2d 1262, 1265-67 (7th Cir. 1990);

McDonald v. Piedmont Aviation, Inc., 625 F. Supp. 762,

765-66 (S.D.N.Y. 1986); cf. Alaska Airlines, Inc. v.

Brock, 480 U.S. 678, 687 n.9 (1987). In practice, the

Courts have administered the ADA duty-to-hire provisions

similarly to other federal statutory provisions creating im-

plied employment hiring claims, such as anti-discrimination

statutes. See Robinson v. American Airlines, Inc., 722

F. Supp. 757, 763 (D.D.C. 1989). aff'd, 908 F.2d 1020

(D.C. Cir. 1990). Because the rights and remedies under

Section 43 are totally implied by the courts, the issue of

a right to jury trial in ADA duty-to-hire cases is purely

an issue of the Seventh Amendment. (App. 38a)

This case was commenced in June, 1986, when Re-

spondent Hobart N. Crocker, Jr. filed a complaint against

Petitioner Piedmont Aviation, Inc. for declining to hire

him as an airline pilot in alleged violation of the duty-

to-hire requirements of the ADA. (App. 3a, 34a)

2In contrast, the statute established a “monthly assistance pay-

ment” program, Pub. L. No. 95-504, § 43(b), 92 Stat. 1750-51

(1978), 49 U.S.C. App. § 1552(b)(1), which provided for the

payment of unemployment-type benefits by the government to

protected airline employees who lost their employment as a result

of deregulation. Crocker v. Piedmont Aviation, Inc., 933 F.2d

1024, 1025 (D.C. Cir. 1991). Congress’ stated intent in adopting

the duty-to-hire provisions was to lessen the government’s poten-

tial liability for unemployment payments by obtaining employment

for displaced airline employees. /d. at 1026-27. No funds were

ever appropriated and no benefits were ever paid by the govern-

ment under the monthly assistance payment program. Alaska

Airlines, Inc. v. Brock, 480 U.S. 678, 681 (1987).

i Nl An Me ent RY at a nas ALU A .

cae Maer e eR we oO Cb een

ee ee

Crocker sought an order of instatement in a Piedmont

pilot position and any backpay due from the date Pied-

mont allegedly should have hired him as a pilot under the

provisions of the ADA. (/d.) Crocker requested a jury

trial. (/d.)

Piedmont filed a motion to strike Crocker’s demand for

jury trial. (App. 4a, 34a) On May 4, 1993, the District

Court issued a Memorandum Opinion and Order, which

relied on this Court’s characterization of backpay as an

equitable rerredy in Franklin v. Gwinnett County Pub.

Sch., 503 U.S. 60, 75 (1992) (App. 39a), and granted

Piedmont’s motion to strike Crocker’s demand for jury

trial. (App. 33a-40a, 41a-42a) On May 17 and 18,

1993, the District Court conducted a bench trial, and

on July 22, 1993, issued a Memorandum Opinion and

Order entering judgment for Piedmont. (App. 43a-52a,

53a)

Crocker pursued an appeal, claiming that his demand

for backpay was one for legal monetary damages that

entitled him to a jury trial. (App. 4a) The Court of

Appeals for the District of Columbia Circuit in a March

3, 1995 opinion granted Crocker’s appeal, concluding

that (1) generally, backpay from an employer is not

equitable relief, but legal monetary damages, because it

is not “restitutionary.” and (2) specifically, under the

“duty-to-hire” requirement of Section 43 of the Airline

Deregulation Act of 1978, backpay and instatement are

not “intertwined” remedies. (App. 1la-29a, 30a, 31a-

32a) On those bases, the Court of Appeals held that

under the standards of Teamsters Local No. 391 v. Terry,

494 U.S. 558 (1990), the Plaintiff had a Seventh Amend-

ment right to jury trial for his backpay claim that had

been wrongfully denied by the District Court. (App. 27a,

29a)*

*In addition to the Seventh Amendment jury trial issue, the

Court of Appeal’s decision addressed issues relating to the propri-

ety of a cross-appeal, statute of limitations, and harmless error.

(App. la-29a) This petition for certiorari is directed solely to the

On March 31, 1995, Piedmont petitioned for recon-

sideration and filed a suggestion for rehearing in banc.

On April 19, 1995, the Court of Appeals denied recon-

sideration and rehearing in banc. (App. 54a, 55a)

REASONS FOR GRANTING THE PETITION

This case presents the significant issue of the constitu-

tional right to jury trial in implied statutory actions

against employers for backpay. The statute under which

the case arises, the duty-to-hire provision of Section 43

of the Airline Deregulation Act of 1978, specifies no reme-

dies or enforcement procedures. Consequently, the peti-

tion presents a pure issue of Seventh Amendment inter-

pretation concerning the availability of jury trial for back-

pay claims. The issue is not limited to the Airline De-

regulation Act, but has broad implications to other federal

employment statutes, including Section 504 of the Re-

habilitation Act of 1973, the Veterans Reemployment

Rights Act, Section 1983 of the Civil Rights Act of 1871,

and Section 1981 of the Civil Rights Act of 1866. If the

Seventh Amendment analysis of the D.C. Circuit is

adopted by other circuits, it will result in a substantial

expansion of jury trials in employment actions in the fed-

eral courts.

This Court has consistently characterized backpay—

when sought under statutory claims from an employer—

as an equitable remedy. In Terry, 494 U.S. 558, how-

ever, the Court held that backpay sought from a third

party, the union, was not equitable or incidental to equi-

table relief and required a jury trial. The Court of Ap-

peals’ decision overreads Terry as changing Seventh

Amendment precedent and generally requiring jury trials

on backpay claims, even against employers. The court

erroneously concluded that backpay from an employer is

not a form of restitution. The Court of Appeals also

Court’s analysis of the jury trial issue under the Seventh Amend-

ment. (App. 17a-29a)

Sie I ERE §

erred by holding that backpay is not incidental to or

intertwined with the equitable remedy of instatement or

reinstatement to employment, unless expressly made so

under a specific statute’s enforcement provisions.

There is a clear division in the courts of appeals in

interpreting Terry with respect to the equitable nature of

backpay. The Eleventh Circuit in Waldrop v. Southern

Co. Servs., Inc., 24 F.3d 152, 157-58 (11th Cir. 1994),

upon which the D.C. Circuit relied, mischaracterizes

Terry as a broad rejection of the equitable character of

backpay. In contrast, the Sixth Circuit in Schwartz v.

Gregori, 45 F.3d 1017, 1022-23 (6th Cir. 1995) cor-

rectly limits the Terry holding to backpay claims against

non-employer third parties, and the Fourth Circuit adopts

a similar view in Pandazides v. Virginia Bd. of Educ.,

13 F.3d 823, 832-33 (4th Cir. 1994).

Guidance from the Court concerning the proper inter-

pretation of Terry and the right to jury trial on backpay

claims is needed and will have broad application beyond

this case. The current division in the circuits threatens

to waste judicial resources on jury trials in employment

cases where the Seventh Amendment mandate does not

apply. Finally, review clarifying Terry is particularly ap-

propriate because the Court has granted certiorari in an-

other Seventh Amendment jury trial case, American

Airlines, Inc. v. Lockwood, 115 S. Ct. 2274 (1995),

arising in the patent law context, but requiring reference

to the Seventh Amendment standards of Terry.

I. THE QUESTION PRESENTED IS ONE OF IMPOR-

TANCE TO BACKPAY CLAIMS IN EMPLOYMENT

ACTIONS UNDER VARIOUS STATUTES

The fundamental issue presented by this case is whether

a claim for backpay from an employer, especially when

coupled with a request for instatement or reinstatement

as an employee, involves only equitable relief for which

there is no right to jury trial under the Seventh Amend-

ment.‘ The Court should grant review because the ques-

tion of whether a jury trial is available in an employment

action for backpay is an important one to the judicial

processing of employment claims under many statutes.

This case, which arises under the ADA, is a particularly

appropriate vehicle for addressing the pure Seventh

Amendment issue of the availability of jury trial for back-

pay claims.

Backpay as a remedy in employment cases consists of

the payment by the employer of the wages a plaintiff

would have obtained from the employer if the plaintiff

had been hired or retained in employment status. See

United States v. Burke, 504 U.S. 229, 233 (1992).

Along with instatement or reinstatement, it is the major

remedy in employment actions. See Barbara L. Schlei &

Paul Grossman, Employment Discrimination Law 1418

(2d ed. 1994). For this reason, the two principle federal

employment statutes—the National Labor Relations Act

and Title VII of the Civil Rights Act—expressly make

backpay available as a remedy.®

Backpay and instatement or reinstatement are intended

to “restor[e] victims . . . to the wage and employment

positions they would have occupied absent the unlawful

4 This case deals with a hiring claim seeking backpay and in-

statement against a prospective employer. Petitioner believes the

jury trial issue it presents applies equally as well to discharge

actions seeking backpay and reinstatement claims against former

employers. The Court of Appeals’ Seventh Amendment analysis

makes no distinction between instatement and reinstatement, since

both are indisputably equitable remedies. (App. 1la-29a)

5 The National Labor Relations Act, which is enforced admin-

istratively, authorized the National Labor Relations Board “to take

such affirmative action including reinstatement of employees with

or without back pay... .” 29 U.S.C. §160(c) (1988).

Title VII of the Civil Rights Act has remedial] provisions modeled

on the NLRA, and provides that a federal court may “order such

affirmative action as may be appropriate, which may include...

reinstatement or hiring of employees, with or without backpay

..” 42 U.S.C. § 2000e-5(g) (1) (Supp. V 1993).

Pee Mee fo tee ty

fai plage.» nd al atin del

>. a yt eee pe

fact].” United States v. Burke, 504 U.S. at 239. In-

statement or reinstatement places a plaintiff in employee

status, and backpay coupled with other specific remedies,

such as the accrual of pension credit or award of retro-

active seniority, restores all employment-related entitle-

inents to a successful plaintiff.°

Congress has made jury trials available under certain

federal employment statutes, including the Age Discrim-

ination in Employment Act’ and Title VII of the Civil

Rights Act.* However, there remain a number of federal

6In this case, for example, Crocker expressly requested as a

remedy an award of retroactive seniority and the rank, duties, and

compensation of a comparable seniority Piedmont pilot. (App.

34a)

7 The Age Discrimination in Employment Act expressly provides

for jury trials. 29 U.S.C. § 626(c) (2) (1988); see Lorillard v.

Pons, 434 U.S. 575 (1978).

8 Prior to 1991, the federal courts consistently held that Title

VII provided for equitable remedies, including backpay, and there

was no right to jury trial under the statute. See, e.g., Ramos v.

Roche Prods., Inc., 986 F.2d 48, 49-50 (ist Cir.), cert. denied,

502 U.S. 941 (1991); Walton v. Eaton Corp., 563 F.2d 66, 69 n.1

(8d Cir. 1977); Cox v. Babcock & Wilcox Co., 471 F.2d 18, 14

(4th Cir. 1972) ; Landgraf v. U.S.I. Film Prods., 968 F.2d 427, 431

(5th Cir. 1992), aff'd, 114 S. Ct. 1483 (1994); Moore v. Sun Oil

Co., 686 F.2d 154, 156 (6th Cir. 1980) ; Harmon v. May Broadcast-

ing Co., 583 F.2d 410, 410 (8th Cir. 1978); Slack v. Havens, 522

F.2d 1091, 1094 (9th Cir. 1975); Snider v. Circle K Corp., 923

F.2d 1404, 1407 (10th Cir. 1991); Lincoln v. Board of Regents,

697 F.2d 928, 934 (llth Cir.), cert. denied, 464 U.S. 826 (1983);

see also Terry, 494 U.S. at 572 (“[t}he Court has never held that

a plaintiff seeking backpay under Title VII has a right to a jury

trial.’’)

The Civil Rights Act of 1991, Pub. L. No. 102-166, Title I, § 102,

105 Stat. 1073, amended Title VII to expressly provide a right to

jury trial for claims of intentional discrimination seeking com-

pensatory or punitive damages. 42 U.S.C. §198la(c) (Supp. V

1993). However, Congress specifically excluded “backpay” from

the definition of “compensatory damages,” 42 U.S.C. § 1981a(b) (2)

(Supp. V 1993). For this reason, the right to jury trial under

employment statutes where Congress has not expressly

directed a jury trial. Among the other implied statutory

claims which potentially are implicated by the Court of

Appeals’ opinion are: Section 504 of the Rehabilitation

Act, 29 U.S.C. § 701 et seq.,’ Section 1983 of the Civil

Rights Act of 1871, 42 U.S.C. § 1983,"° the Veterans

Reemployment Rights Act, 38 U.S.C. § 4301 et seq.,”

and Section 1981 of the Civil Rights Act of 1866, 42

U.S.C. § 1981.”

The Court of Appeals’ conclusion that backpay sought

from an employer is not restitutionary, and thus not

equitable, effectively requires a jury trial in all implied

employment actions seeking backpay. The D.C. Circuit’s

analysis is not limited to duty-to-hire claims under Section

43 of the ADA, but would apply to any implied statutory

claim for backpay against an employer. The Court of

Appeals based its analysis, in part, on the lack of any

congressional directive on the jury trial issue under Sec-

Title VII continues to be inapplicable to claims for backpay.

Townsend v. Indiana Univ., 995 F.2d 691, 693-94 (7th Cir. 1993).

9 See Waldrop v. Southern Co. Servs., Inc., 24 F.3d 152, 159 (11th

Cir. 1994) (right to jury trial).

10 See Santiago-Negron v. Castro-Davila, 865 F.2d 431, 441

(1st Cir. 1989) (no right to jury trial when plaintiff only seeking

reinstatement and backpay).

11 See Troy v. City of Hampton, 756 F.2d 1000, 1003 (4th Cir.)

(en banc), cert. denied, 474 U.S. 864 (1985) (no right to jury

trial). The Veterans Reemployment Rights Act was renamed and

recodified in 1994 as the Uniformed Services Employment and

Reemployment Rights Act of 1994, 38 U.S.C. § 4801 et seq.

12 See Ramos v. Roche Prods., Inc., 986 F.2d 48, 50 (1st Cir.

1991) (no jury trial for § 1981 backpay claim); Moore v. Sun Oil

Co., 686 F.2d 154, 156 (6th Cir. 1980) (same); Setser v. Novack

Inv. Co., 688 F.2d 11387, 1142 (8th Cir.) (right to jury trial in

§ 1981 backpay case), cert. denied, 454 U.S. 1064, 1066 (1981)

(White, J., dissenting from denial of certiorari) ; but see Hornsby

v. St. Louis Southwestern Ry. Co., 963 F.2d 1130, 1132 (8th Cir.

1992) (backpay a form of equitable relief under 45 U.S.C. § 60).

Pee ee

tion 43 of the ADA. (App. 23a-27a) Thus, in any case

where Congress has not specified the availability of jury

trial, or expressly characterized backpay as equitable, the

D.C. Circuit’s analysis would require a jury trial on a

backpay claim against an employer, whether or not cou-

pled with a request for instatement or reinstatement.

If the D.C. Circuit’s Seventh Amendment analysis is

adopted by other circuits, it will likely result in a sub-

stantial expansion of the availability of jury trials in em-

ployment actions in the federal courts. Jury trials would

be required not only in ADA Section 43 cases, but in

Section 504 Rehabilitation Act cases, Veterans Reemploy-

ment Act cases, Section 1983 and 1981 cases, and cases

under other federal statutes where the federal courts have

implied employment-related claims. This would aggra-

vate the civil jury trial burden in employment cases that

the Civil Rights Act of 1991 has already placed upon

the federal courts.

The Court should review this issue at this time in order

to avoid the waste of judicial resources on unnecessary

jury trials that are not mandated by the Seventh Amend-

ment. The efficient administration of judicial resources

is served by the Court accepting this important question

of Seventh Amendment analysis.

II. THE COURT OF APPEALS’ DECISION CONFLICTS

WITH THE DECISIONS OF THIS COURT AND

OTHER CIRCUITS CONCERNING THE EQUITA-

BLE NATURE OF BACKPAY

The Court of Appeals’ opinion misinterprets Teamsters

Local No. 391 v. Terry, 494 U.S. 558 (1990) and other

Supreme Court decisions that have held consistently that

backpay from an employer, especially when coupled with

instatement or reinstatement, is a form of equitable relief

that does not implicate a constitutional right to jury

trial. The Court of Appeals’ conclusions, that (1) as a

general matter backpay is not “restitutionary,” and (2)

backpay and instatement or reinstatement are only “inter-

twined” when Congress so mandates under a statute’s

express remedial scheme, are unsupported by Terry and

other Supreme Court precedent. Further, the recent deci-

sions of other courts of appeals interpreting Terry demon-

strate a clear conflict and confusion among the circuits

concerning the equitable or legal nature of backpay

under Seventh Amendment analysis.

A. The Court of Appeals’ Misreading of Terry

The Court of Appeals recognized that the Supreme

Court’s decision in Terry controls the Seventh Amendment

analysis of backpay, and cited the Court’s subsequent de-

cision in Wooddell for the general standard of jury trial

analysis:

To determine whether a particular action will resolve

legal rights, and therefore give rise to a jury trial

right, we examine both the nature of the issues in-

volved and the remedy sought. “ ‘First, we compare

the statutory action to 18th-century actions brought

in the courts of England prior to the merger of the

courts of law and equity. Second, we examine the

remedy sought and determine whether it is legal or

equitable in nature.’ ”

Wooddell v. International Bhd. of Elec. Workers, 502

U.S. 93, 97 (1991) (citations omitted); see Terry, 494

U.S. at 565. (App. 17a-18a)

The Court of Appeals engaged in the required historical

analysis, which was hindered by the fact that there is no

close 18th-century analogue to the Airline Deregulation

Act duty-to-hire provisions. While Piedmont believes that

under the historical analysis an implied duty-to-hire action

is closer in character to equity than to law, the Court of

Appeals concluded that the historical analysis was “in

equipoise.” (App. 21a) This petition does not challenge

that conclusion nor present any issue concerning the his-

torical analysis under the Seventh Amendment.

" deitians Ee pe yrs a Ne 6

Instead, this petition and the Court of Appeals’ jury

trial analysis focuses on the second test of Terry which

concludes that monetary damages may be equitable when

(1) “they are restitutionary,” or (2) “incidental to or

intertwined with injunctive relief.” Terry, 494 U.S. at

570-71. (App. 21a-27a) The Court of Appeals plainly

erred in the way it applied these two factors to Crocker’s

claim of instatement and backpay.

i. Backpay As Restitution

The primary error in the decision below is its conclu-

sion that backpay from an employer is, as a general

matter, not “restitutionary” and thus not equitable. (App.

22a-23a) The Court of Appeals appears to base this

conclusion, in part, on the fact that the Court in Terry

“itself found a jury trial right for a purely implied cause

of action for back pay.” (App. 27a)"

But the opinion of the Court in Terry shows that the

Court concluded that backpay was not restitutionary be-

cause it was sought from a third party, the union, and not

the employer. As a result of a seniority dispute, the plain-

tiffs in Terry initially filed a lawsuit against their em-

ployer for allegedly violating their collective bargaining

agreement “* and against their union for allegedly breach-

8 The Court of Appeals’ decision also appears heavily influenced

by its prior decision in Hubbard v. Administrator, EPA, 982 F.2d

531 (D.C. Cir. 1992) (in banc), in which a divided court found

backpay to be non-restitutionary in the context of sovereign im-

munity analysis under 5 U.S.C. § 702. Judge Edwards wrote a

scholarly dissent, 982 F.2d at 544-48, arguing by analogy to the

equitable nature of backpay under the Seventh Amendment. J udge

Randolph and then-Judge Ruth Bader Ginsburg concurred with the

decision, but stated support for Judge Edwards’ analysis of backpay

as equitable under the Seventh Amendment. 982 F.2d at 539.

4 Petitioner does not dispute that where backpay is sought from

an employer under a breach of contract claim, clearly an action in

law under the historical analysis, the Seventh Amendment requires

a jury trial. See, eg., Vaca v. Sipes, 386 U.S. 171 (1967) ;

ing the duty to represent them fairly. 494 U.S. at 526.

The company subsequently declared bankruptcy and was

dismissed from the case, as was the plaintiffs’ request for

injunctive relief. Jd. at 563. The case proceeded solely

on the duty of fair representation claim against the union

and its attendant claim for “compensatory damages for

lost wages and health benefits.” /d.

This Court in Terry noted that it had previously “char-

acterized damages as equitable where they are restitu-

tionary, such as in ‘actions for disgorgement of improper

profits.” Jd. at 570 (citations omitted). The Court

explained, however, that “[t]he backpay sought by [the

plaintiffs was] not money wrongfully held by the Union,

but wages and benefits they would have received from

[the employer| had the Union processed the employees’

grievances properly.” Jd. at 570-71 (emphasis added).

And the Court stated that “backpay sought from an em-

ployer under Title VII would generally be restitutionar:

in nature . . . in contrast to the damages sought here

from the Union.” Id. at 572 (emphasis added) (cita-

tions omitted). Because the relief was sought from the

union, and not the employer, the “relief is not restitu-

tionary.” Jd. at 571. Indeed, the very point of Terry,

and the subsequent decision in Wooddell, is that backpay

claims against unions, as opposed to employers, are not

equitable and require jury trials.

This Court’s analysis in Terry also must be viewed in

the context of both prior and subsequent decisions that

consistently have characterized backpay, when sought

from an employer, as equitable. See Franklin v. Gwinnett

County Pub. Sch., 503 U.S. 60, 75 (1992) (discussing

nature of damages generally; “both remedies [backpay

and prospective relief] are equitable in nature”); Bowen

v. Massachusetts, 487 U.S. 879, 893 (1988) (describing

DelCostello v. International Bhd. of Teamsters, 462 U.S. 151

(1983) ; Bowen v. United States Postal Serv., 459 U.S. 212 (1983).

tia ay

reinstatement and backpay as an “equitable action for

specific relief”); Consolidated Rail Corp. v. Darrone, 465

U.S. 624, 630 & n.10 (1984) (holding that under § 504

of Rehabilitation Act, persons alleging intentional dis-

crimination can bring “equitable action for backpay” and

noting the “courts’ equitable power to award backpay”);

Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288,

291-96 (1960) (characterizing backpay under FLSA as

an equitable remedy); see also Commissioner v. Schleier,

115 S. Ct. 2159, 2166 (1995) (citing United States v.

Burke, 504 U.S. 229, 238-40 (1992)) (“we emphasized

in Burke the lack of a right to a jury trial and the absence

of any provision for punitive damages as factors distin-

guishing the pre-1991 Title VII action from traditional

tort litigation”); Curtis v. Loether, 415 U.S. 189, 197

(1974) (“[iJn Title VII cases the courts of appeals have

characterized backpay as an integral part of an equitable

remedy, a form of restitution” )."°

Thus, Terry represents an exception to this Court’s

consistent treatment of backpay as equitable relief. Terry

simply stands for the proposition that backpay can be a

legal remedy creating a right to jury trial when it is sought

from a third party such as a union rather than a hiring

or discharging employer. Indeed, the term “backpay” in

the Terry context is something of a misnomer, because

the union would never have an employment relationship

with the plaintiff employees.”

15 Congress has consistently characterized backpay as an equi-

table remedy under Title VII, thereby excluding jury trials. 42

U.S.C. § 2000e-5(g) (1). When enacting the Civil Rights Act of

1991, Congress carefully excluded backpay from the definition of

compensatory damages, continuing to deny jury trials for backpay

claims. 42 U.S.C. § 198la(b) (2); Townsend v. Indiana Univ., 995

F.2d 691 (7th Cir. 1993). Congress’ treatment of backpay as

equitable under Title VII is not a_ statute-specific exception.

Instead, it represents a general legislative interpretation of the

equitable nature of backpay under the Seventh Ar :ndment, which

should continue to be given weight by this Court.

‘6 In such circumstances, the term “lost wages” is perhaps a more

appropriate description of the remedy. 494 U.S. at 563.

2. “Incidental To Or Intertwined With” Equitable

Relief

The other error in the Court of Appeals’ analysis is its

treatment of the second criterion of Terry—whether back-

pay is “incidental to or intertwined with” equitable re-

lief." The Court of Appeals concluded that instatement

or reinstatement and backpay are “intertwined” only when

Congress makes them so in express remedial provi-

sions of a statute. (App. 24a-26a) But the court seemed

rather uncomfortable with this analysis, noting that “[i]t

may seem counterintuitive to determine the availability

of a constitutional guarantee on the basis of such subtle

intimations from Congress.” (App. 26a) (emphasis in

original )

The opinion of the Court of Appeals appears to be the

only lower court decision that attempts a full examination

of the “incidental or intertwined” criterion of Terry, and

its decision evidences confusion on the issue.’* Piedmont

suggests that the “incidental or intertwined” criterion re-

lates not merely to the specific legislative scheme but to

the actual administration of the remedy. And, in adminis-

tration, backpay and instatement or reinstatement are

always intertwined. For example, when coupled with a

claim of instatement, the amount of backpay due cannot

be determined at the time of a complaint and specified in

an ad damnum clause (a traditional characteristic of legal

claims), because it is indeterminate unless and until the

court rules on the availability and timing of instatement.

This Court has held consistently in employment actions

that a request for backpay and instatement or reinstate-

ment are “intertwined” and equitable in character. See

Wooddell v. IBEW, 502 U.S. at 97 (explaining that

under facts in Terry, “an award of money damages” was

not equitable in the Seventh Amendment context, because

17 As the court noted, there is no dispute that instatement is a

form of equitable relief. (App. 17a)

18 See also Hornsby v. St. Louis Southwestern Ry. Co., 963 F.2d

1130, 1134-35 (8th Cir. 1992) (Arnold, J. dissenting).

it was not “incidental to or intertwined with injunctive

relief”); Tull v. United States, 481 U.S. 412, 424 (1987)

(court in equity empowered to provide “monetary” awards

“incidental to or intertwined with injunctive relief”);

Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. at

291-96 (under FLSA, backpay incident to court’s injunc-

tive power is restitutionary, and thus equitable).

In Terry, where the reinstatement claim against the

employer had been dropped from the case, there was no

“intertwining” to support a claim for equitable relief.

But in most hiring claims, such as Crocker’s, where both

instatement or reinstatement and backpay are sought, the

claims are “intertwined” and negate any Seventh Amend-

ment right to a jury trial under Terry.

Thus, the Court of Appeals fundamentally misread

Terry on both the “restitutionary” and the “incidental or

intertwined” criteria. The Terry decision, in fact, re-

inforces this Court’s long-held view that backpay sought

from an employer is restitutionary, and that a backpay

claim coupled with a request for instatement or reinstate-

ment is equitable. Nothing in Terry, or any other Su-

preme Court decision, supports the Court of Appeals’

conclusion that the Seventh Amendment requires a jury

trial for a claim for instatement and backpay from an

employer under a federal statute, such as Section 43 of

the ADA, that creates implied hiring claims.

B. The Conflict In The Circuits

As the D.C. Circuit’s language evidences, the court

clearly overread the Terry decision as characterizing back-

pay as a legal remedy, even when sought from an em-

ployer: “[W]Je note that Terry itself found a jury right for

a purely implied cause of action for back pay.” (App.

27a) Unfortunately, the D.C. Circuit is not alone in that

error.’®

19 As noted above, even in the D.C. Circuit there is support for

the proposition that employment claims for backpay are equitable

and do not create a right to jury trial under the Seventh Amend-

The Eleventh Circuit has similarly misread Terry, in

Waldrop v. Southern Co. Servs., Inc., 24 F.3d 152 (11th

Cir. 1994), a case the D.C. Circuit relied upon in its

decision below. (App. 23a) In Waldrop, an employment

action arising under Section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794, the Eleventh Circuit found

a jury trial right for a backpay claim against a former

employer. Noting that “the recent trend of Supreme

Court cases is to treat back pay awards as legal rem-

edies” and “in Terry .. . a back pay award was a legal

remedy,” the Court simplistically concluded “it would be

careless to hold . . . that backpay awards under Section

504 constitute equitable restitution ... .” 24 F.3d at

157-58. Thus, the Eleventh Circuit, like the D.C. Circuit,

seems to have erroneously generalized from Terry to con-

clude that backpay is always a legal remedy.

But at least one circuit, the Sixth, has correctly ana-

lyzed the holding of Terry as limited to backpay claims

against non-employer, third parties. In Schwartz v.

Gregori, 45 F.3d 1017 (6th Cir. 1995), the Court ana-

lyzed the legal and equitable nature of backpay for pur-

poses of determining available remedies under Section

502(a)(3) of the Employee Retirement Income Security

Act (ERISA), 29 U.S.C. § 1132(a). Reviewing the

facts and analysis of Terry, the Sixth Circuit concluded

that the equitable versus legal nature of backpay depends

upon the party against whom the remedy is sought.

ment. As Judge Edwards stated in his dissent in Hubbard v.

Administrator, EPA, 982 F.2d 531 (D.C. Cir. 1992) (en banc):

Courts have recognized the equitable nature of back pay

awards in a number of different contexts. Generally, these

decisions hold that back pay constitutes the very thing that

the plaintiff would have received but for the defendant’s il-

legal action; back pay is thus seen to reflect equitable restitu-

tion. Some decisions also justify a back pay award as inci-

dental to an equitable instatement order. On either rationale,

there is strong authority ....

Id. at 544.

Significantly, Terry characterized the back’ pay at

issue in Mitchell as restitutionary, and stated as well

that relief incidental or intertwined with injunctive

relief may be considered to be equitable.

Like in Mitchell, the back pay at issue in this case

was awarded against the employer rather than a

third party, and thus operates to restore to the plain-

tiff that to which she would have enjoyed but for

the employer’s illegal retaliation. While restitution

generally is awarded to prevent unjust enrichment

to the defendant, this is not required in every case.

. . . While Terry did not expound on its reasons for

characterizing as restitutionary the award of back

Pay against an employer . . . these principles fully

support its conclusion.

Schwartz, 45 F.3d at 1022 (emphasis in original) (cita-

tions omitted). Thus, the Sixth Circuit has recognized

that the characterization of backpay as legal in Terry was

based on the fact that it was sought from a third party,

and not an employer.”

The Fourth Circuit appears to have recognized the

same principle.” In Pandazides v. Virginia Bd. of Educ.

13 F.3d 823 (4th Cir. 1994), the Court analyzed the

jury trial issue under Section 504 of the Rehabilitation

Act, 29 U.S.C. § 794. The Fourth Circuit concluded:

While it may be that backpay received from an

employer could be characterized as restitutionary and

thus equitable, such as in a standard Section 504

or Title VII action (an issue not before us), in this

instance Pandazides is suing a third party, the certify-

ing board.

63 U.S.L.W. 3892 (June 12, 1995) (No. 94-2035) raising ERISA

interpretation issues.

*1The Fourth Circuit adopted a similar analysis of backpay

claims under the Veterans Reemployment Rights Act in a pre-

Terry case, Troy v. City of Hampton, 756 F.2d 1000 (4th Cir.)

(en banc), cert. denied, 474 U.S. 864 (1985).

Pandazides, 13 F.3d at 832 (emphasis in original).

Thus, the Fourth Circuit articulated the distinction be-

tween employers and third parties which underscores the

Terry analysis.”

More briefly, the Fifth Circuit in Wilson v. Belmont

Homes, Inc., 970 F.2d 53, 56 (Sth Cir. 1992) has com-

mented in a Title VII case that post-Terry backpay from

an employer “obviously would be restitutionary.”

To Petitioner’s knowledge, no other Court of Appeals

has opined on the interpretation of Terry with respect to

backpay claims. Recently, the Tenth Circuit was pre-

sented with the same issue as this case: the right to jury

trial in backpay actions under Section 43 of the ADA.

See Bowdry v. United Airlines, Inc., 1995 U.S. App

LEXIS 16021 (10th Cir. June 28, 1995). However, be-

cause the issue was not perfected procedurally, the Tenth

Circuit declined to address it. 7d. at *17.

Nonetheless, there is a clear division between the posi-

tion of the D.C. Circuit and the Eleventh Circuit, and that

of the Sixth Circuit and the Fourth Circuit (and possibly

the Fifth Circuit), in interpretation and application of

Terry to backpay claims. The treatment of backpay for

jury trial purposes is an important issue among the courts

of appeals, and is continuing to arise under a variety of

statutes, including Section 43 of the ADA, Section 504

of the Rehabilitation Act, the Veterans Reemployment

Rights Act, and Sections 1981 and 1983.

Ill. THE COURT SHOULD GRANT CERTIORARI TO

CLARIFY THE APPLICATION OF TERRY TO

BACKPAY CLAIMS AGAINST EMPLOYERS

The potential impact of the D.C. Circuit’s interpreta-

tion of Terry to backpay claims against employers and

22 The Ninth Circuit has similarly recognized in a Section 504

case that, under Terry, backpay may be equitable when intertwined

with equitable relief. Smith v. Barton, 914 F.2d 1330, 1337 (9th

Cir. 1990), cert. denied, 501 U.S. 1217 (1991).

the existing conflict in the circuits concerning the inter-

pretation of Terry provide ample basis for the Court to

grant certiorari. As Justice White once wrote: “[T]he

right to a jury trial is fundamental. It is not a tolerable

rule of law that one’s right to a jury trial depends upon

the geographical location of the federal district court

within which one files a complaint.” Novack Investment

Co. v. Setser, 454 U.S. 1064, 1065 (1981) (White, J.,

dissenting from a denial of certiorari). In addition, the

pendency of another Seventh Amendment case before the

Court supports review.

For the first time since the 1991 Wooddell case, the

Court has granted certiorari in a Seventh Amendment

jury trial case. In American Airlines, Inc. v. Lockwood,

the Court will review the availability of jury trial under

the Seventh Amendment in certain patent actions. 115

S. Ct. 2274 (1995).

Petitioner respectfully suggests that the Court should

review this case concurrent with American Airlines. Re-

view in American Airlines will require the Court to ex-

amine its established Seventh Amendment analysis under

Terry and Wooddell in the specialized context of patent

litigation. Yet, a conflict exists in the circuits in inter-

preting Terry in its own context of backpay claims in

employment-related actions. Because the American Air-

lines case will not resolve the specific issue of the equi-

table nature of backpay from an employer under Seventh

Amendment analysis, holding this case pending a decision

in American Airlines will not be sufficient to clarify the

issue presented by this petition. Therefore, it is appro-

priate for the Court to grant certiorari in this case to

clarify the direct application of Terry in employment

cases concurrent with addressing related Seventh Amend-

ment issues involving patent claims in the American Air-

lines case.

Granting certiorari in this case will give the Court the

opportunity to clarify Terry concerning backpay claims

against employers. Review will ensure that the courts of

appeals do not misinterpret Terry and vastly expand the

availability of jury trials in employment actions where

plaintiffs seek backpay from employers.

CONCLUSION

For the reasons set forth above, this Court should

grant the. writ of certiorari to the Court of Appeals for

the District of Columbia Circuit.

Respectfully submitted,

JAMES T. LLOYD THOMAS E. REINERT, JR.

BETTY LEACH HAWKINS Counsel of Record

USAIR, INC. MORGAN, LEWIS & BOCKIUS

2345 Crystal Drive 1800 M Street, N.W.

Crystal Park Four Washington, D.C. 20036

Arlington, VA 22227 (202) 467-7084

(703) 418-5216 Counsel for Petitioner

Piedmont Aviation, Inc.

Dated: July 18, 1995

r 4

7™

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 31, 1994 Decided March 3, 1995

No. 93-7141

HoBART N. CROCKER, JR.,

Appellant

Vv.

PIEDMONT AVIATION, INC.,

Appellee

No. 93-7142

HoBART N. CROCKER, JR.,

Appellee

Vv.

PIEDMONT AVIATION, INC.,

Appellant

_ Appeals from the United States District Court

for the District of Columbia

(86cv01673)

Before: WILLIAMS, ) GINSBURG and ROGERS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

;

WILLIAMS, Circuit Judge. When Congress deregulated

the airline industry in the late 1970s, it sought to soften

the blow to longtime airline employees who might lose

their jobs in the expected industry shake-up. It therefore

included in the deregulatory legislation an Employee Pro-

tection Program (“EPP”) for experienced airline work-

ers who lost jobs or income as the result of a covered

carrier’s bankruptcy or downsizing. Airline Deregulation

Act of 1978, Pub. L. No. 95-504, § 43, 92 Stat. 1750

(1978) (current version at 49 U.S.C. §§ 42101-06).

Among other things, the EPP gives a furloughed or termi-

nated employee with four years’ experience as of October

1978 a “first right of hire, regardless of age, in his occu-

pational specialty, by any -other air carrier hiring addi-

tional employees. . ” Airline Deregulation Act

§ 43(d)(1); see also recodification at 49 U.S.C.A.

§ 42103 and hist. note (West 1994).’ Airlines are under

a corresponding “duty to hire such a person before they

hire any other person” besides their own laid-off employ-

ees. Airline Deregulation Act § 43(d)(1).

Hobart Crocker, Jr., a furloughed pilot protected by

the EPP, sued Piedmont Aviation (now part of USAir,

Inc.) for allegedly failing to hire him in violation of the

Act. His complaint asked for instatement as a pilot and

back pay. The district court denied Crocker’s motion for

a jury trial and, in a bench trial, found for Piedmont. We

now hold that Crocker was entitled to a jury trial on his

claims and that his failure to receive such a trial was prej-

udicial. In response to Piedmont’s cross-appeal, we hold

that the district court ruled correctly in finding Crocker’s

complaint to be timely filed under the District of Colum-

1The 1994 recodification has changed this language somewhat,

with no effect on substance. The provision now states that a

“protected employee . . . is entitled to be the first employed in the

occupational specialty of the employee, regardless of the employee’s

age, by any other air carrier” covered by the Act. The language

specifying the airline’s corresponding duty to hire was deleted as

surplusage. 49 U.S.C.A. § 42103 and hist. note (West 1994).

bia’s general three-year tort statute of limitations. We

therefore remand the case for a jury trial.

Crocker was a pilot for Air New England from 1973

until he was furloughed when the carrier ceased opera-

tions in October 1981. In April 1982 he applied for a

position as a pilot with Piedmont Aviation. Piedmont

called Crocker and invited him to interview with the air-

line’s pilot selection committee in July 1982. Crocker was

then 56 years old.

At this point, Piedmont’s and Crocker’s stories diverge.

Piedmont maintains that immediately after the meeting,

it disqualified Crocker from further consideration based

on his admission during the interview that the Federal

Aviation Administration had temporarily suspended his

pilot’s license for violating safety rules. Crocker, on the

other hand, alleges that Piedmont refused to hire him be-

cause of his age, notwithstanding the EPP’s explicit pro-

hibition on taking age into account.

In March 1984, Piedmont began hiring pilots who were

not covered by the EPP’s first-hire obligations. Crocker

filed this action in June 1986, alleging that the hiring of

these unprotected candidates violated his priority under

the EPP: he asked for instatement as a pilot and back

pay and demanded a jury trial. Piedmont moved for sum-

mary judgment in 1988 on the grounds that the suit was

untimely filed; as discussed in greater detail below, the

district court denied the motion. 696 F. Supp. 685, 689-

92 (D.D.C. 1988). Piedmont filed a second motion for

summary judgment (technically, a motion to strike part

of the plaintiff's claim for relief) in 1989, contending that

Crocker lost his EPP rights when he took temporary em-

ployment with a non-certificted, bankrupt air taxi service

while awaiting a decision from Piedmont. The district

court granted the motion. 741 F. Supp. 241 (D.D.C.

1989). Crocker appealed, and we reversed and remanded

for trial. Crocker v. Piedmont Aviation, Inc., 933 F.2d

1024 (D.C. Cir. 1991).

Roughly a week before jury selection was to begin, the

district court granted Piedmont’s motion to strike

Crocker’s jury demand on the grounds that the claims

for back pay and instatement were both equitable in na-

ture; hence, the Seventh Amendment’s guarantee of a jury

trial for all “Suits at common law, where the value in

controversy shall exceed twenty dollars” did not apply.

After a two-day bench trial, the court found that Pied-

mont had a policy of never hiring pilots whose flying li-

censes had been suspended by the FAA, that this hiring

standard was a legitimate non-age-based requirement of

employment, and that Piedmont had refused to hire

Crocker because he failed to meet this standard. The

court entered judgment for Piedmont.

Crocker now appeals both the order striking his jury

demand and the order entering judgment for Piedmont.

Piedmont cross-appeals the district court’s 1988 decision

applying a three-year statute of limitations to the claims

and denying summary judgment. We address the statute

of limitations issues first.

Il.

A. Waiver and Law of the Case

Piedmont urges us to affirm the judgment entered in its

favor, regardless of how we rule on the Seventh Amend-

ment question, because the suit was filed out of time. The

airline maintains that a six-month statute of limitations

borrowed from the National Labor Relations Act governs

the cause of action and bars this suit, which was filed 27

months after the claim accrued in March 1984. Piedmont

initially raised this argument before the tiral court in its

1988 motion for summary judgment. The district court

denied this motion, holding that the District of Columbia’s

general three-year tort statute of limitations provided the

relevant period and that Crocker’s suit was thus timely

filed. When this case came to us on Crocker’s appeal in

1991, however, Piedmont did not challenge this earlier

statute of limitations ruling or present it as a possible

alternative basis for affirming its award of summary

judgment.

Crocker maintains that by this failure to present the

issue to us in 1991, Piedmont has forfeited the possibility

of raising a statute of limitations argument on this ap-

peal. He argues that the district court’s 1988 limitations

ruling has become the binding law of the case, which we

may not revisit. We reject Crocker’s position and decide

the limitations issue.

“Law-of-the-case doctrine” refers to a family of rules

embodying the general concept that a court involved in

later phases of a lawsuit should not re-open questions

decided (i.e., established as the law of the case) by that

court or a higher one in earlier phases. When there are

multiple appeals taken in the course of a single piece of

litigation, law-of-the-case doctrine holds that decisions ren-

dered on the first appeal should not be revisited on later

trips to the appellate court. See, e.g., Northwestern Ind.

Tel. Co. v. FCC, 872 F.2d 465, 471 (D.C. Cir. 1989)

(appellate court’s prior ruling establishing exhaustion re-

quirement is law of the case and cannot be challenged on

second appeal); Laffey v. Northwest Airlines, Inc., 740

F.2d 1071, 1090, 1093 (D.C. Cir. 1984) (challenge to

district court’s correct application of prior appellate deci-

sion is barred by law-of-the-case doctrine); see also 18

R. Miller & Edward H. Cooper, Federal Practice and Pro-

cedure § 4478, at 801 (1981); id. at 625 (1994 Supp.)

(“Arguments that were not advanced on appeal may be

lost because they are found wrapped up with a larger

issue that was decided” previously). What identifies this

as true law-of-the-case preclusion is that the first appeals

court has affirmatively decided the issue, be it explicitly

or by necessary implication. See Women’s Equity Action

League v. Cavazos, 906 F.2d 742, 751 n.14 (D.C. Cir.

1990) (“Questions that merely could have been decided

do not become law of the case”) (citing Bouchet v. Na-

tional Urban League, 730 F.2d 799, 806 (D.C. Cir.

1984)).

Previous decisions of this court have extended these

principles beyond their core application. We have several

times said that appellate courts are precluded from re-

visiting not just prior appellate decisions but also those

prior rulings of the trial court that could have been but

were not challenged on an earlier appeal. “[A] legal

decision made at one stage of litigation, unchallenged in

a subsequent appeal when the opportunity to do so ex-

isted, [governs] future stages of the same litigation, and

the parties are deemed to have waived the right to chal-

lenge that decision at a later time,” Williamsburg Wax

Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243,

250 (D.C. Cir. 1987). See also Palmer v. Kelly, 17 F.3d

1490, 1495-96 (D.C. Cir. 1994); Laffey, 740 F.2d at

1089-90 (defendant’s failure to challenge district court’s

formula for calculation of damages on first appeal waives

any potential challenge on later appeals). Although we

have often referred to this second principle as a type of

law-of-the-case rule (in part because the two principles

were first articulated in this circuit alongside one another,

see Laffey, 740 F.2d at 1089-93), it is an analytically

distinct principle: unlike law-of-the-case doctrine proper,

this bar on raising issues omitted from prior appeals—

best understood as a species of waiver doctrine—does nof

involve any previous appellate court decision on the

barred issue. Our occasional shorthand suggestion that |

the trial court’s decision becomes “law of the case” for

the appellate court is technically inaccurate. Cf. Chris-

tianson v. Colt Indus. Operating Corp., 486 U.S. 800,

817-18 (1988) (“[A] district court’s adherence to law

of the case cannot insulate an issue from appellate

review’ ).

In any event, neither law-of-the-case doctrine proper

nor this subsidiary waiver principle is an absolute pre-

clusion to appellate review. Law of the case is a pru-

dential rule rather than a jurisdictional one; in the words

of Justice Holmes, the doctrine “merely evpresses the

practice of courts generally to refuse to reopen what has

been decided, not a limit to their power,” Messenger v.

Anderson, 225 U.S. 436, 444 (1912). See also Chris-

tianson, 486 U.S. at 817; Arizona v. California, 460 US.

605, 618 (1983) (“Law of the case directs a court’s

discretion[;:] it does not limit the tribunal’s power.’);

Women’s Equity Action League, 906 F.2d at 751-52

n.14. The derivative waiver rule is justified by a similar

practical concern for judicial economy, as it channels into

the first appeal issues whose early resolution might ob-

viate the need for later rounds of remands and appeals.

See Laffey, 740 F.2d at 1089 (waiver rule flows from

need for “orderly conduct of litigation”). But the con-

cerns for judicial economy underlying this waiver rule are

plainly weaker than for core law-of-the-case doctrine;

the waiver rule is never needed to prevent the appellate

court from revisiting matters it has already decided once.

For both core law-of-the-case preclusion and its diluted

waiver variant, the bases for exceptions are broader than

for conventional issue or claim preclusion. While final

judgments normally may not be re-examined merely be-

cause of an intervening change in the law, see, e.g., 18

Wright, Miller & Cooper § 4415, at 130-31; see also id.,

§ 4426 at 268 (suggesting that similar principles govern

issue preclusion), such a change will support a departure

from the previously established law of the case. See

Women’s Equity Action League, 906 F.2d at 752 n.14

(“When intervening legal authority makes clear that a

prior decision bears qualification, that decision must yield.

Law of the case cannot be substituted for the law of the

land.”) (internal quotation marks omitted). Similarly,

an appellate court may deviate from the law of the case

if the previous decision was “clearly erroneous and would

work a manifest injustice,” Arizona v. California, 460

U.S. at 618 n.8 (emphasis added), which would not

justify overturning a final judgment. The preclusive bar-

rier of the waiver doctrine is even one notich weaker:

the appellate court, for example, always possesses discre-

tion to reach an otherwise waived issue logically “ante-

cedent to and ultimately dispositive of the dispute before

it,” United States Nat'l Bank of Oregon v. Independent

Ins. Agents of America, 113 S. Ct. 2173, 2178 (1993)

(ellipses and internal quotation marks omitted), although

discretion to waive a waiver is normally exercised only in

“exceptional circumstances, where injustice might other-

wise result,” Eli Lilly & Co. v. Home Ins. Co., 794 F.2d

710, 717 ¢<D.C. Cir. 1986).

The present case involves an application of waiver

doctrine, not core law-of-the-case principles. It is true,

as Crocker notes, that had Piedmont presented its statute

of limitations argument to us in 1991 when we reviewed

the earlier grant of summary judgment, three years of

additional litigation could potentially have been avoided:

a finding that Crocker’s suit was time-barred would

have obviated the need for any kind of trial, whether

by court or jury. But Piedmont’s role as an appellee

introduces other concerns. Crocker, not Piedmont, de-

fined the battleground on the first appeal, raising issues

having nothing whatever to do with the statute of

limitations. While there are clear adjudicative efficiencies

created by requiring appellants to bring all of their objec-

tions to a judgment in a single appeal rather than seriatim

(the only context in which we have ever before now

applied the waiver doctrine), forcing appellees to put

forth every conceivable alternative ground for affirmance

might increase the complexity and scope of appeals more

than it would streamline the progress of the litigation.

While an appellant must persuade the court to overturn

a district court ruling, it enjoys the offsetting procedural

benefit of filing both the opening and reply briefs.

On the other hand, an appellee presenting alternative

grounds for affirmance and facing a potential application

of the waiver doctrine must also attack an adverse dis-

trict court ruling,” but without the offsetting advantage of

being able to file a reply brief.

Of course, an appellee might respond to this proce-

dural handicap by filing a cross-appeal, as Piedmont did

on this round of appeals. But this imposes significant

burdens on the appellate court. Cross-appeals are re-

quired only when the party prevailing below seeks to

enlarge the scope of that judgcment; they are not neces-

sary when the party simply presents alternative bases for

affirmance. See United States v. American Ry. Express,

265 U.S. 425, 435 (1924); Koniag, Inc. v. Andrus, 580

F.2d 601, 605 n.3 (D.C. Cir. 1978). These unnecessary

cross-appeals may alleviate the procedural asymmetry

faced by the appellee, but they generate additional com-

plexity that has elicited sharp judicial rebuke:

Cross-appeals for the sole purpose of making an ar-

gument in support of the judgment are worse than

unnecessary. They disrupt the briefing schedule, in-

creasing from three to four the number of briefs, and

they make the case less readily understandable to the

judges. The arguments will be distributed over more

papers, which also tend to be longer. Unless a party

requests the alteration of the judgment in its favor,

it should not file a notice of appeal.

Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 439 (7th

Cir. 1987). See also 15A Wright, Miller & Cooper

§ 3904, at 205 (“Cross-appeal procedure complicates

briefing schedules and the number and lengths of briefs

in ways that may generate more confusion than enlighten-

ment”).

? The waiver rule we have been discussing applies only when

the trial court has expressly or impliedly ruled on a question and

there has been an opportunity to challenge that ruling on a prior

appeal. See Williamsburg Wax Museum, 810 F.2d at 250. If the

trial court has not affirmatively ruled, the waiver doctrine would

be inapplicable.

10a

Thus, full application of the waiver rule to an appellee

puts it in a dilemma between procedural disadvantage

and improper use of the cross-appeal. That dilemma, to-

gether with the potential judicial diseconomies of forcing

appellees to multiply the number of arguments presented,

justifies a degree of leniency in applying the waiver rule

to issues that could have been raised by appellees on

previous appeals.

Finally, any doubts that we might have here about the

propriety of reaching the limitations issues are allayed

by the fact that deciding Piedmont’s proffered narrow

question of statutory interpretation offers us the potential

(at least when viewed ex ante) of resolving the case with-

out making pronouncements on the complex Seventh

Amendment questions. Cf. Ashwander v. Tennessee Val-

ley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J.,

concurring) (counseling against reaching constitutional

questions when potentially adequate nonconstitutional

grounds for decision exist); Railway Labor Executives’

Ass'n v. United States, 987 F.2d 806, 810 (D.C. Cir.

1993) (same). We therefore turn to the merits of Pied-

mont’s arguments.

B. Statute of Limitations

The EPP does not explicitly create a private cause of

action for protected employees whose first-hire rights have

been violated; rather, courts have inferred such a right

of action from the structure of the statutory scheme and

the policies it is designed to further. See generally Long

v. Trans World Airlines, Inc., 913 F.2d 1262, 1265-67

(7th Cir. 1990). Obviously, Congress did not specify a

statute of limitations to govern a cause of action it did

not consciously create. As a result, we must “discern[]

the limitations period that Congress intended courts to

apply to a cause of action it really never knew existed.”

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson,

111 S. Ct. 2773, 2780 (1991).

lla

The district court held that the most appropriate stat-

ute of limitations to borrow was the District of Colum-

bia’s general three-year period applicable to tort claims

not otherwise specified, D.C. Code § 12-301(8); hence,

the suit—filed 27 months after the cause of action ac-

crued—was saved. Piedmont, on the other hand, argues

that the most analogous statutes of limitation are federal:

the six-month period for filing unfair labor practice com-

plaints under the National Labor Relations Act, 29

U.S.C. § 160(b), or the maximum 300-day limitations

period for filing a complaint with the Equal Employment

Opportunity Commission under the Age Discrimination

in Employment Act, 29 U.S.C. § 626(d)(2). Should

we find no federal statute of limitations appropriate, Pied-

mont contends, the one-vear time limit for bringing an

age-discrimination suit under the District of Columbia’s

Human Rights Act, D.C. Code § 1-2544, should govern.

Under any of Piedmont’s theories, Crocker’s suit would

be time-barred.

Federal courts usually look to state law for an analogous

statute of limitations. This represents long-standing judi-

cial practice under the Rules of Decision Act and a pre-

sumed congressional endorsement of that practice. See

Lampf, Pleva, 111 S. Ct. at 2778 (plurality opinion);

Reed v. United Transp. Union, 488 U.S. 319, 323-24

(1989); Agency Holding Corp. v. Malley-Duff & Associ-

ates, 483 U.S. 143, 147 (1987). On the other hand, the

importation of state law in some instances would interfere

with federal policy, and it would be “inappropriate to con-

clude that Congress would choose to adopt state rules at

odds with the purpose or operation of federal substantive

law,” DelCostello v. International Bhd. of Teamsters, 462

U.S. 151, 161 (1983). In those cases, we look for a

statute of limitations in federal law. See DelCostello;

Agency Holding Corp. Still, our borrowing from federal

law is “unusual” and “a closely circumscribed exception

to the general rule,” Reed, 488 U.S. at 324; we will do it

12a

| “only ‘when 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

litigation make that rule a significantly more appropriate

vehicle for interstitial lawmaking,’” id. (quoting DelCos-

tello, 462 U.S. at 172) (emphasis added).

We must therefore find two things before we look to

federal law for a limitations period: a federal policy that

would clearly be frustrated by using state statutes of limi-

tation, and a closely analogous federal statute. As to the

first, Piedmont posits a strong federal interest in inter-

jurisdictional uniformity in the administration of the EPP,

given that the airline industry is overwhelmingly interstate.

It is true that in Agency Holding Corp. the Court observed

that a single civil RICO suit could potentially encompass

an enormous range of state-law claims in multiple juris-

dictions simultaneously and accordingly found a single,

uniform federal limitations period for these suits. See 483

U.S. at 153-54. On the other hand, the mere possibility

that an actor with operations in more than one state might

be subject to different statutes of limitation for the same

conduct in different jurisdictions cannot itself be enough

to force a uniform period: such is the result any time a

federal court borrows a local statute of limitations, yet the

norm is to look to state law. See Wilson v. Garcia, 471

U.S. 261, 275 (1985) (requiring that all kinds of § 1983

actions be classified as personal injury suits for purposes

of seeking analogous state causes of action, but rec-

ognizing that use of state analogy will cause interstate

variation ).

The EPP lawsuits at issue here fall midway along this

spectrum. On the one hand, although there is some poten-

tial factual variation among first-hire claims (as we dis-

cuss below), it is not so great as for the hydra-headed

civil RICO actions considered above. On the other hand,

given that all (or at least virtually all) of the regulated

airlines subject to the EPP would have operations in more

a neeiaismeieiiaiaaiimiiliiaiiiciniiic mia,

13a

than one state, the statute by its terms assures that a high

Proportion of cases and defendants will be subject to

diverse limitations periods. As the Court appeared to

regard civil RICO as a truly exceptional case, we think

this intermediate position cannot automatically justify in-

sistence on a uniform federal period; we regard it only

as a factor to be kept in mind as we search for federal

Statutory analogs.

Neither of the federal statutes put forth by Piedmont—

the National Labor Relations Act and the Age Discrimi-

nation in Employment Act—is sufficiently similar to the

EPP to turn us away from the usual practice of borrowing

from state law. The Supreme Court has regarded the

NLRA’s uniform six-month limitations period for filing

unfair labor practice charges with the National Labor Re-

lations Board as especially necessary to Support “those

consensual processes that federal labor law is chiefly de-

signed to promote—the formation of the collective agree-

ment and the private settlement of disputes under it,”

DelCostello, 462 U.S. at 163 (citation omitted). See also

Reed, 488 U.S. at 333 (stressing that purpose of six-

months limit is to sustain special “federal interests in stable

bargaining relationships and in private dispute resolu-

tion”). Thus the Court has extended the NLRA’s six-

month period to hybrid suits combining Labor Manage-

ment Relations Act § 301 claims against an employer for

breach of a collective bargaining agreement with NLRA

claims against a union for breach of its duty of fair rep-

resentation in the agreement-created grievance process.

DelCostello. But the Court has not applied this period to

all labor-law actions: it refused to apply it to a suit to

enforce union democracy rights created by § 101 of the

Labor-Management Reporting and Disclosure Act even

though the resolution of the suit could have had “some

impact on economic relations between union and employer

and on labor peace”. Reed, 488 US. at wank

l4a

The EPP’s connection io NLRA unfair labor practice

adjudication is quite remote. The EPP provides special

hiring rights regardless of whether the protected worker’s

past or potential employers are covered by any collective

bargaining agreement or other federally promoted relation-

ship. Any effect that a successful EPP suit might have on

a collective bargaining agreement is indirect and con-

tingent: should a court order the instatement of an em-

ployee denied first-hire rights, that employee’s carryover

seniority rights could conceivably disrupt a pre-existing

seniority agreement between the new employer and a

union, should one exist. Because the relationship is some-

what remote, the majority of circuit courts that have con-

sidered the question have decided against applying the

NLRA’s six-month limitation to litigants’ first-hire cl ims

under the EPP. See Bowdry v. United Air Lines, Inc.,

956 F.2d 999, 1004-07 (10th Cir. 1992) (rejecting

NLRA time limit in favor of state-law period for suits on

federal claims not otherwise specified); Gonzales v. Aloha

Airlines, 940 F.2d 1312, 1314-15 (9th Cir. 1991) (same);

McDonald v. Piedmont Aviation, Inc., 930 F.2d 220, 224-

25 (2d Cir. 1991) (rejecting NLRA period in favor of

three-year state tort statute of limitations); but see Hag-

gerty v. USAir, Inc., 952 F.2d 781, 786-88 (3d Cir.

1992) (borrowing NLRA’s six-month limitations period

for EPP claims. We do the same.

Piedmont alternatively suggests that we treat Crocker’s

Suit as an age discrimination case and apply the maximum

300-day time limit for filing such claims with the EEOC

under the federal Age Discrimination in Employment Act

(“ADEA”). It is true that the plaintiff here has sug-

gested that his EPP rights were ignored because of his

age, and it is also true that the text of the EPP explicitly

gives protected employees rights of first hire “regardless

of age.” But age discrimination is in no way an essential

component of an EPP suit; protected workers who meet a

carrier’s established hiring qualifications, see 29 CFR

15a

§ 220.11(a), may have a cause of action if their first-hire

rights are ignored for any reason, age simply being an

explicitly listed example. See, e.g., Bowdry, 956 F.2d at

1001-04 (airline violated EPP by refusing to hire work-

ers who had rejected alternative opportunity for employ-

ment by another carrier); Long, 913 F.2d at 1267-69

(airline violated EPP by denying first-hire rights to em-

ployees it had replaced in an economic strike). To make

the choice of limitations period turn on the particular facts

or theory of each claim would clearly “breed{] uncertainty

and time-consuming litigation,” Wilson v. Garcia, 471

U.S. at 272; we must therefore pick a single period fitted

as well as possible to the EPP as a generic cause of action.

The ADEA’s limitations period does not qualify.

In short, we find no obvious federal statutory analog

to the EPP cause of action and only a moderate federal

policy interest in uniformity that would be frustrated by

borrowing state law. We therefore look for an appro-

priate statute of limitations in the law of the District of

Columbia. Piedmont, on substantially the same grounds

it invoked for use of the ADEA, urges us to adopt the one-

year limitations period for bringing claims under the D.C.

Human Rights Act. See D.C. Code § 1-2544(a) (one-

year limit for filing administrative claims with Office of

Human Rights); Davis v. Potomac Elec. Power Co., 449

A.2d 278 (D.C. 1982) (applying this one-year period to

suits filed under the Act). That statute makes it unlawful

to fail to hire an individual “wholly or partially for a dis-

criminatory reason based upon [the person’s] race, color,

religion, national origin, sex, age, marital status, personal

appearance, sexual orientation, family responsibilities,

physical handicap, matriculation, or political affiliation.”

D.C. Code § 1-2512(a) and (a)(1). Though the D.C.

Human Rights Act covers a broader range of employ-

ment discrimination claims than does the federal ADEA,

it is not on that account more suitable. Again, the EPP

is not a ban on discrimination but an explicit requirement

l6a

of preference on the basis of a single characteristic; proof

of discrimination on any of the bases enumerated in the

D.C. Human Rights Act is neither necessary nor suff-

cient for a successful EPP first-hire claim. A _ plaintiff

may, as a matter of trial strategy, try to prove that dis-

crimination motivated the defendant’s refusal to recognize

his or her first-hire rights in a particular case, but any

resulting similarity between EPP litigation and antidis-

crimination claims is fortuitous.

At oral argument, it was suggested that we apply the

District of Columbia’s one-year statute of limitations for

“libel, slander, assault, battery, mayhem, wounding, mali-

cious prosecution, false arrest or false imprisonment,”

D.C. Code § 12-301(4), on the theory that a defendant’s

violation of its first-hire duties under the EPP constitutes

an intentional tort similar to those in the statute. Cf. Doe

v. U.S. Dep’t of Justice, 753 F.2d 1092, 1114-15, 1115

n.30 (D.C. Cir. 1985) (applying § 12-301(4)’s one-year

period to Bivens action based on alleged defamation);

McClam v. Barry, 697 F.2d 366, 372-74 (D.C. Cir.

1983) (applying § 12-301(4) to Bivens claim alleging

false imprisonment). But the District of Columbia courts

have made it clear that § 12-301(4)’s one-year limitations

period governs only the specific enumerated torts; it does

not apply generically to all intentional torts. See Saun-

ders v. Nemati, 580 A.2d 660, 663-64 (D.C. 1990).

Significantly for our case, § 12-301(4) does not cover

intentional economic torts such as tortious interference

with contract or fraud. See id. In Banks v. Chesapeake

& Potomac Tel. Co., 802 F.2d 1416, 1427 (D.C. Cir.

1986), we said in dictum that § 12-301(4) should not

apply to a claim under 42 U.S.C. § 1981, as that section’s

guarantees of “equal rights to make and enforce con-

tracts, equal access to judicial process, and equal rights

under law” made it quite different from the physical and

reputational torts covered by § 12-301(4), id. at 1428.

The distinction is applicable here, and it seems compelling.

ee A TR ht BILD A CS a Olio oP a

17a

Having considered and rejected every other possibility

proposed, we are left with the district court’s choice: the

local three-year period that governs all causes of action

“for which a limitation is not otherwise specially pre-

scribed,” D.C. Code § 12-301(8). While it is easy to

disparage this statute (as Piedmont does) as a mere

catch-all or residual category, it.does in fact embrace all

personal injury claims in the District of Columbia (other

than the few intentional physical and reputational torts

covered by § 12-301(4), see Banks, 802 F.2d and 1426-

27), including the economic torts of fraud and tortious

interference, see Saunders, 580 A.2d at 663-64. Though

its fit is not perfect, this statute appears closest to our

generic cause of action. Cf. DelCostello, 462 U.S. at 171

(stating that selection of state law is the norm even where

it fails to provide a “perfect analogy”).

We therefore agree with the district court that the gen-

eral three-year statute of limitations in § 12-301(8) gov-

erns this suit for violation of EPP first-hire rights. Because

Crocker filed his complaint nine months before this period

ran, his suit was timely. As a result, we must proceed to

address Crocker’s possible right to a jury trial.

IT.

The Seventh Amendment provides that “[i]n Suits at

common law, where the value in controversy shall exceed

twenty dollars, the right of trial by jury shall be pre-

served.” Crocker’s suit asked for instatement with Pied-

mont as a pilot and back pay from the date his claim

accrued. Both parties agree that instatement is an equit-

able remedy, not a legal one; Crocker concedes that if

he had sought only instatement, his suit could be tried

without a jury. The question, then, is whether the Con-

stitution requires a jury trial of Crocker’s claim for back

pay.

The Supreme Court has established a two-step inquiry

for determining when a litigant has a right to have his or

her claims under a statute heard by a jury:

18a

To determine whether a particular action will re-

solve legal rights, and therefore give rise to a jury

trial right, we examine both the nature of the issues

involved and the remedy sought. First, we compare

the statutory action to 18th-century actions brought

in the courts of England prior to the merger of the

courts of law and equity. Second, we examine the

remedy sought and determine whether it is legal or

equitable in nature.

Wooddell v. International Bhd. of Elec. Workers, 112

S. Ct. 494, 497 (1991) (citations and internal quotation

marks omitted). For reasons that will become apparent

in the next section, the second part of this test (the na-

ture of the remedy) is more important than the first.

See id. at 498; Granfinanciera, S.A. v. Nordberg, 492 U.S.

33, 42 (1989). We take each part of this inquiry in turn.

A. Analogies to 18th-Century English Practice

Where the right at issue is a creature of recent statute,

the search for an 18th-century English analog typically

yields no clear answer. Given the radical difference be-

tween mid-20th-century American ideas of the proper

role of the state and the ideas prevailing in 1&th-century

England, this difficulty is hardly surprising; it is certainly

present here. Moreover, as the focus of the inquiry is on

whether the “issue to be tried” was analogous to one

characteristically dealt with in equity or at common law,

Chauffeurs, Teamsters and Helpers Local No. 391 v.

Terry, 494 U.S. 558, 569 (1990) (emphasis in original),

and as most traditional issues could be tried in both con-

texts (albeit leading to different remedies), inconclusive

results seem foreordained.

Piedmont, recalling the efforts of William Marbury to

secure his commission as justice of the peace, Marbury v.

Madison, 5 U.S. (1 Cranch) 137 (1803), suggests that

Crocker’s suit for instatement is analogous to a request

for a writ of mandamus, which it characterizes as equit-

19a

able. Technically, this characterization is incorrect: writs

of mandamus, like the other prerogative writs, were pri-

marily issued by the King’s Bench, a court of common

law and not equity. See 1 William Holdsworth, A History

of English Law 229 (6th ed. 1938); see also Heine v.

The Levee Comm'rs, 86 U.S. (19 Wall.) 655, 660

(1873) (“Mandamus is essentially and exclusively a

common-law remedy and is unknown to the equity prac-

tice”). The point is probably immaterial, however, for an

action in mandamus was never tried by a jury.

The more serious difficulty is that Crocker’s claim is

not closely analogous to a petition for a writ of manda-

mus. The King’s Bench issued such writs as part of its

exercise of the royal powers of administration; they were

“directed to any person, corporation, or inferior court of

judicature within the king’s dominions, requiring them to

do some particular thing therein specified, which apper-

tains to their office and duty.” 3 William Blackstone,

Commentaries *110 (emphasis changed). But so far as

appears, the writ served only for ordering public officials

to perform clear ministerial duties, and officials of corpo-

ratious were deemed public only by virtue of their orga-

nizations’ royal charters. While a writ of mandamus

might therefore lie “to compel the admission or restora-

tion of the party applying to any office or franchise of a

public nature, whether spiritual or temporal,” id. (em-

phasis added), we can find no evidence of its application

in the 18th century to purely private employment below

the level of corporate official, the scenario relevant to

Crocker’s claim.

Crocker, on the other hand, suggests that Piedmont’s

alleged failure to hire him in disregard of the EPP’s

statutory command is analogous to the tort of wrongful

discharge—or more precisely, to the public policy excep-

tions to the employment-at-will doctrine, which may pre-

vent the firing of employees who exercise statutory rights

(e.g., applying for workers’ compensation) or fulfill statu-

20a

tory duties (e.g., jury duty or reporting fraud). Whether

or not this analogy is apt, it fails for our purposes be-

cause the tort of wrongful discharge is a creature of the

twentieth century, not the eighteenth. The first signifi-

cant statutory abridgement of the employment-at-will doc-

rine was the National Labor Relations Act, and cases

recognizing a wrongful discharge tort grounded in public

policy did not arise until the 1950s. See Timothy J.

Heinsz, The Assault on the Employment at Will Doctrine:

Management Considerations, 48 Mo. L. Rev. 855, 873-

77 (1983); Brian F. Berger, Note, Defining Public Policy

Torts in At-Will Dismissals, 34 Stan. L. Rev. 153, 155-58

(1981).

Crocker also highlights the age discrimination aspects

of his claim and suggests analogies to traditional tort ac-

tions for personal injuries, noting that the Supreme Court

has drawn similar analogies for certain discrimination

claims. See, e.g., Curtis v. Loether, 415 U.S. 189, 195-

96 n.10 (1974) (“An action to redress racial discrimina-

tion may also be likened to an action for defamation or

intentional infliction of mental distress.” ); see also Good-

man v. Lukens Steel Co., 482 U.S. 656, 661 (1987)

(analogizing 42 U.S.C. § 1981 claims to personal injury

claims for purposes of determining statute of limitations) ;

Wilson, 471 U.S. at 277-78 (same for § 1983). But as

we have now said twice, the age discrimination aspects

of this case are legally peripheral, and an EPP first-hire

action is not, at its core, an antidiscrimination suit.

In one final attempt to fit his case into a traditional

tort-law paradigm, Crocker reframes it as follows: as in

any other personal injury action, the law (here, the EPP)

imposed a duty of care on Piedmont towards people in

Crocker’s situation, Piedmont breached that duty, the

breach injured Crocker, and Crocker suffered damages.

But while it is true that courts have long looked to stat-

utes for the applicable standard of care in tort actions,

see, e.g., 3 Fowler V. Harper et al., The Law of Torts

2la

§ 17.6 (2d ed. 1986), Crocker’s argument is at far too

high a level of generality to control. It would allow any

lawsuit alleging some violation of the law to be boot-

strapped into a personal injury paradigm simply by re-

framing the alleged legal violation as a breach of a duty

of care.

We are therefore left—to borrow the Supreme Court’s

term for the outcome of a similarly futile historical in-

quiry—“in equipoise.” Terry, 494 U.S. at 570. Of

course, the lack of a closely analogous cause of action

does not automatically mean, as Piedmont suggests, that

Crocker has no right to a jury trial, given that “the right

extends beyond the common-law forms of action recog-

nized” in 1791, Curtis, 415 U.S. at 193. Rather, we

proceed to the second and more important step of the

Seventh Amendment inquiry: the characterization of the

remedies the plaintiff is seeking as either legal or equi-

table.

B. The Nature of the EPP Backpay Remedy

The Supreme Court has held that as a general rule

awards of pecuniary relief such as back pay are legal.

See Mertens v. Hewitt Assocs., 113 S. Ct. 2063, 2068

(1993); Terry, 494 U.S. at 570; Curtis, 415 U.S. at 196.

This is not so in every case, however; courts of equity

have long had the power to give pecuniary relief should

specific performance or other traditionally equitable rem-

edies be insufficient. See Mertens, 113 S. Ct. at 2068-69;

see also Arthur G. Sedgwick & Joseph H. Beale, A

Treatise on the Measure of Damages § 1256b (9th Ed.

1920). In Teamsters v. Terry, the Court articulated two

exceptions to the general rule that back pay or other

monetary relief is legal and entitles the plaintiff to a jury

trial:

First, we have characterized damages as equitable

where they are restitutionary, such as in “action[s]

for disgorgement of improper profits,” Tull [v.

United States}, 481 U.S. [412,] 424 [(1987)]. See

22a

also Curtis v. Loether, supra, at 197; Porter v.

Warner Holding Co., 328 U.S. 395, 402 (1946)....

Second, a monetary award “incidental to or inter-

twined with injunctive relief’ may be equitable.

Tull, supra, at 424. See, e.g., Mitchell v. Robert

DeMario Jewelry, Inc., 361 U.S. 288, 291-92

(1960). ...

494 U.S. at 570-71. If the monetary relief requested

possesses neither of these attributes, the remedy is con-

sidered legal, and the plaintiff is entitled to a jury trial

on his or her complaint. 7d. at 570.

The first element of this test turns cn the definition of

“restitutionary”. “Restitution [is] defined as that body of

law in which (1) substantive liability is based on unjust

enrichment, (2) the measure of recovery is based on de-

fendant’s gain instead of plaintiff's loss, or (3) the court

restores to plaintiff, in kind, his lost property or its pro-

ceeds.” Douglas Laycock, The Scope and Significance

of Restitution, 67 Tex. L. Rev. 1277, 1293 (1989) (em-

phasis in original). An action in restitution can result in

the defendant’s payment of money, either because that

sum of money was itself the thing unjustly taken or be-

cause the thing taken has been converted and can no

longer be specifically returned. See, e.g., Porter v.

Warner Holding Co., 328 U.S. 395, 402 (1946). In

such a case the payment of money from defendant to

plaintiff represents a kind of specific relief rather than

compensatory damages.

Whatever restitution may encompass, however, we

clearly may not collapse it into the broader notion of

“compensation.” Cf. Laycock, supra, at 1282-83. Yet it

is hard to see how back pay could generally be char-

acterized as restitutionary without having that effect.

Two characteristics tend to make Crocker’s requested

back pay more like compensatory damages than specific

relief. First, his recovery would not be measured by any

hypothetical gain Piedmont had enjoyed, even if such a

23a

gain were measurable, which it is not. Second, as we

noted in Hubbard v. Administrator, EPA, 982 F.2d 531,

533-34 (D.C. Cir. 1992) (en banc), income from alter-

native employment is deducted from the gross unpaid

income, precisely so that the plaintiff will be compensated

solely for his actual losses. Crocker’s claim for back pay

is thus not restitutionary. Cf. Waldrop v. Southern Co.

Sves., Inc., 24 F.3d 152, 158-59 (11th Cir. 1994) (back

pay award under § 504 of Rehabilitation Act represents

compensatory damages, not restitution).

The second prong of the Terry test holds that mone-

tary damages “incidental to or intertwined with injunctive

relief” may be considered equitable for Seventh Amend-

ment purposes. Piedmont argues that Crocker’s claims

for back pay and instatement (a form of injunctive re-

lief) are intertwined simply because they were brought

together in the same complaint. Terry provides some sup-

port for the idea that the relevant “intertwining” is found

in the plaintiff's request for remedies; in that case all the

claims for injunctive relief had dropped out by the time

of appeal, and the Court noted tersely that “[b]ecause

respondents seek only money damages, this characteristic

is clearly absent from the case.” 494 U.S. at 571. But

where all claims for legal and equitable relief are still

live, the Court in fact seems not to look to the palintiff’s

demand for indicia of intertwining. The plaintiff in

Wooddell sued his union under the LMRDA for dis-

crimination in job referrals and requested both back pay

and injunctive relief in a single complaint. The Wooddell

Court required a jury trial on the backpay claims not-

withstanding the fact that both types of claims were live

at the time of the appeal. 112 S. Ct. at 498.

Nor do we think that the term can, as both parties

suggest,” refer to the relative worth of the back pay and

% Crocker argues that his original demand for instatement is now

moot because he is nearly 70 years old, while Piedmont insists that

Crocker’s prayer for instatement was the essence of his complaint,

back pay being computed secondarily from the point of instatement.

24a

equitable claims at a particular point in the litigation.

The Court has repeatedly and firmly insisted that the

right to jury trial on a legal claim cannot be extinguished

simply because modern procedural devices have brought

it together in the same suit as an equitable claim. See

Ross v. Bernhard, 396 U.S. 531, 537-38 (1970); Dairy

Queen, Inc. v. Wood, 369 U.S. 469, 470 (1962); Beacon

Theatres, Inc. v. Westover, 359 U.S. 500 (1959). And

Dairy Queen’s disparagement of the idea that the jury

right could be “lost as to legal issues where those issues

are characterized as ‘incidental’ to equitable issues,” 369

U.S. at 470, would sit awkwardly with any such quantita-

tive comparison. But cf. Tull v. United States, 481 US.

412, 424-25 (1987) (characterizing civil penalty as legal

and noting that its amount, $22 million, “hardly [could]

be considered incidental to the modest equitable relief

sought in this case”).

It appears instead that the status of a claim as “inter-

twined” or “incidental” with injunctive relief depends on

the remedial structure of the statutory scheme. The Su-

preme Court has characterized lost-wage and backpay

remedies as equitable when the power to award such

amounts was derived from a statutory grant of equitable

authority. In Mitchell v. DeMario Jewelry, 361 US.

288 (1960)—the sole example of intertwining cited by

Terry—the Court found that § 17 of the Fair Labor

Standards Act, 29 U.S.C. § 217, which gave the district

courts explicit power to enjoin certain retaliatory dis-

charges, implicitly also gave them power to award what-

ever supplementary relief was necessary to further the

purposes of the statute, including lost wages. The Court

characterized this implied power as equitable, not because

lost-wage relief inherently sounds in equity, but rather

because it arose derivatively from the equitable injunction

powers granted by the statute. /d. at 291-93.

Title VII, at least before its amendment by Civil

Rights Act of 1991, is likewise a statutory scheme under

which back pay is merely incidental to equitable relief.

ee ee eee

25a

See Sparrow v. Commissioner, 949 F.2d 434, 437-38

(D.C. Cir. 1991) (collecting cases). The text of Title

VII itself subordinates the granting of back pay to an

award of reinstatement, which in turn is merely a mani-

festation of the statute’s grant of injunctive powers and

derivative equity jurisdiction:

If the court finds that the respondent has intention-

ally engaged in or is intentionally engaging in an

unlawful employment practice charged in the com-

plaint, the court may enjoin the respondent from

engaging in such unlawful employment practice, and

order such affirmative action as may be appropriate,

which may include, but is not limited to, reinstate-

ment or hiring of employees, with or without back

pay .. ., or any other equitable relief as the court

deems appropriate.

42 U.S.C. § 2000e-5(g)(1) (emphasis added). See

Terry, 494 U.S. at 572 (citing this language to justify

assumption that Title VII backpay claims are equitable

and to distinguish those claims from rights of action im-

plied from the NLRA): Curtis, 415 U.S. at 197 (1974)

(contrasting this language with Title VIII’s simple author-

ization of damages and holding that equitable nature of

Title VII relief should not control characterization of

Title VIII remedies). Further, the characterization of

Title VII backpay awards as equitable is bolstered bv

the fact that judges formally retain some degree of equi-

table discretion in deciding whether to award back pay

in individual cases once violations are proven, see

Lorillard v. Pons, 434 U.S. 575, 584 (1978); Curtis,

415 U.S. at 197, even though the Court has severely

constrained the exercise of this discretion, see Albermarle

Paper Co. v. Moody, 422 U.S. 405, 421 (1975).

On the other hand, where a statute does not explicitly

describe money damages as equitable, or where the im-

position of such damages is not a matter of equitable

discretion once a defendant’s violation is proven, the

26a

Court has characterized the relief as legal and required

a jury trial. See Lorillard, 434 U.S. at 584 (noting that

the ADEA “incorporates the FLSA provision that em-

ployers ‘shall be liable’ [for wage deficiencies], while

under Title VII, the availability of backpay is a matter

of equitable discretion”; jury trial therefore available) ;

Curtis, 415 U.S. at 197 (holding jury trial available for

Title VIII money damages claim; “There is no compar-

able discretion here: if a plaintiff proves unlawful dis-

crimination and actual damages, he is entitled to judg-

ment for that amount.”). Similarly, where the power to

award money damages is not merely derivative of the

court’s authority to enjoin statutory violations but rests

on a “separate and distinct statutory provision,” the

award of damages will not be considered “incidental to

or intertwined with” equitable relief. Tull v. United

States, 481 U.S. at 425.

It may seem counterintuitive to determine the avail-

ability of a constitutional guarantee on the basis of such

subtle intimations from Congress. But such an approach

may be inevitable in a system of rules that attaches the

jury right to novel causes of action created by Congress,

see Curtis, 415 U.S. at 194, and yet allows Congress

freely to extinguish these rights by assigning their ad-

judication to a non-judicial body, see. e.g., Atlas Roofing

Co. v. OSHRC, 430 U.S. 442, 450 (1977).

Here, of course, we have no statutory provision what-

ever creating the cause of action or identifying the avail-

able remedies. But the Supreme Court has made clear

that even with respect to implied causes of action, courts

are presumed to possess the full range of remedial powers

—legal as well as equitable—unless Congress has ex-

pressly restricted their exercise. See Franklin v. Gwinnett

County Pub. Schools, 112 S. Ct. 1028, 1035, 1038

(1992). Although Franklin does not address the issue

of jury trial, the inference that Congress intended a full

range of remedies for implied causes of action undercuts

any assertion of statutory basis for viewing the court’s

a teereeeneaiamaena aia

27a

power to award back pay as merely “incidental to or

intertwined with” its ability to grant equitable relief.

Finally, we note that Terry itself found a jury right for

a purely implied cause of action for back pay. 494 U.S.

at 563.

Given that neither of Terry’s two exceptions applies, we

hold that Crocker’s prayer for back pay is a request for

legal money damages and not equitable relief. Crocker

was therefore entitled to a jury trial on his claim, and the

district court was wrong to strike his jury demand. We

now determine whether this error was harmless or whether

a new trial is required.

C. Was the Failure To Give a Jury Trial Prejudicial?

Given the importance of the constitutional right to a

jury trial, we will require a new trial when that right is

erroneously withheld “except in the rare instances in which

denial of a jury demonstrably was harmless error,” 9

Wright, Miller & Cooper § 2322, at 175. Such error is

harmless only when the party’s case is so weak that if it

had been tried before a jury, a directed verdict would have

been appropriate—that is, when “there is no legally suffi-

cient evidentiary basis for a reasonable jury to find for

that party,” Fed. R. Civ. P. 50(a)(1). See also Partee

v. Buch, 28 F.3d 636, 639 (7th Cir. 1994); Pandazides

v. Virginia Bd. of Educ., 13 F.3d 823, 827 (4th Cir.

1994). Here, the evidence on Piedmont’s side does not

meet that test.

As noted above, Crocker asserted that Piedmont de-

clined to hire him because of his age, while Piedmont

contended that it rejected him simply through application

of a general policy against hiring pilots who had ever been

suspended by the Federal Aviation Administration for 30

days or more, a policy that if regularly applied would be

an adequate defense. See 29 CFR §§ 220.11(a),

220.21(a) (allowing carriers to set some employment

28a

requirements and limiting first-hire rights to applicants

who meet all legitimate qualifications). The district court

accepted Piedmont’s defense, finding that the airline had a

“consistent practice” of refusing to hire applicants whose

flying licenses had been suspended for 30 days or more.

But the evidence of such a policy was hardly conclusive,

consisting largely of the following colloquy with Captain

Sharp, the official who had conducted Piedmont’s initial

interview of Crocker in July 1982:

Q: Has Piedmont, in your recollection, in its his-

tory ever hired a pilot applicant who had his license

suspended by the FAA for thirty days?

A: Not to my knowledge.

Sharp testified that at the interview he had asked Crocker

to explain his suspension, which Crocker had listed on his

application for employment. Sharp said he was disturbed

by both the substance of Crocker’s violations of FAA

safety rules and his defiant and cavalier attitude towards

the suspension.

Crocker contradicted the suggestion that he was auto-

matically disqualified from consideration. He and his wife

testified that he had been encouraged after the interview

to take an additional required flight engineers’ exam and

that he had repeated contact with Piedmont in the months

following and received word each time that his application

was still under consideration. He notes that despite his

imperfect safety record, Sharp gave him the same numeri-

cal ratings during the interview as he did some other

candidates who were hired. In addition, Crocker pre-

sented more than a mere “scintilla” of evidence suggesting

that his age, and not his safety record, was responsible for

his not being hired, Harbor Ins. Co v. Schnabel, 946 F.2d

930, 935 (D.C. Cir. 1991): he introduced a letter from

the airline stating that it had a preference for pilot appli-

cants between 24 and 32 years old, he elicited on cross-

examination that Sharp had written down the ages of all

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29a

applicants during their interviews, and he demonstrated

that at the time of his interview he was nine years older

than the oldest hired candidate. Regardless of whether

Crocker could have affirmatively proved a full age-

discrimination claim on this evidence, we do think that he

cast enough doubt on Piedmont’s claimed reason for fail-

ing to hire him that a reasonable jury could have found

in his favor. We therefore find that the district court’s

erroneous refusal of a jury trial was prejudicial error and

that a retrial is required.

* * *

We find that Crocker was entitled to a jury trial on his

claims, that the striking of his jury demand was prejudicial

error, and that his suit was not time-barred. We therefore

affirm the district court’s 1988 ruling on the applicable

statute of limitations, vacate the orders striking the de-

mand for a jury trial and entering judgment for Piedmont

after the bench trial, and remand the case to the district

court for further proceedings.

So ordered.

30a

[Filed Mar. 3, 1995]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 93-7141

HoBART N. CROCKER, JR.,

7 Appellant

PIEDMONT AVIATION, INC.,

Appellee

93-7142

HoBartT N. CROCKER, JR.,

- Appellee

PIEDMONT AVIATION, INC.,

Appellant

Before: Williams, Ginsburg and Rogers, Circuit

Judges.

ORDER

It is ORDERED by the court that opinion filed by the

court on March 3, 1995, be amended as follows:

Page 5, 10 lines from the bottom, delete “18 R. Miller”

and insert in lieu thereof, “18 Charles A. Wright, Arthur

R. Miller”.

Per Curiam

FOR THE COURT

By: /s/ Eva Brown

Deputy Clerk

31a

[Filed Mar. 3, 1995}

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

A RIA oe alte Ren CR Ser a ol li Rea

No. 93-7141

HOBART N. CROCKER, JR.,

; Appellant,

{ Vv.

PIEDMONT AVIATION, INC.,

i Appellee

and Consolidated Case No. 93-7142

Appeals from the United States District Court

for the District of Columbia

. BEFORE: Williams, Ginsburg and Rogers, Circuit

Judges

JUDGMENT

These causes came on to be heard on the record on

appeal from the United States District Court for the Dis-

trict of Columbia and were argued by counsel. On con-

sideration thereof, it is

ORDERED and ADJUDGED, by the Court, that the

judgment of the District Court appealed from in these

causes is hereby affirmed in part, reversed in part, and

the cases are remanded, all in accordance with the Opin-

ion for the Court filed herein this date.

32a

FOR THE COURT:

MARK J. LANGER

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

Date: March 3, 1995

Opinion for the Court filed by Circuit Judge Williams.

33a

[Filed May 4, 1993]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 86-1673 (RCL)

HOBART N. CROCKER, JR.,

Plaintiff,

Vv.

PIEDMONT AVIATION, INC.,

Defendant.

MEMORANDUM OPINION

This case comes before the court on defendant Pied-

mont Aviation Inc.'s memorandum concerning the avail-

ability to plaintiff of a jury trial and injunctive relief.

Piedmont contends that neither injunctive relief nor a

jury trial is available to plaintiff. Plaintiff contends the

opposite. The briefing of these two issues is complete.

The court concludes that injunctive relief is available to

plaintiff but that a jury trial is not.

I. FACTS.

Plaintiff, Hobart N. Crocker, Jr., is a commercial air-

line pilot who lost his job with Air New England in Octo-

ber 1981 when that airline ceased operating. On or about

July 1, 1982, Crocker applied to defendant, Piedmont, for

employment as a pilot, Crocker’s occupational specialty.

Piedmont denied him employment, and Crocker contends

that Piedmont’s actions violated the Airline Deregulation

Act of 1978, 49 U.S.C. § 1552 (“the Act”).

34a

As its name indicates, the Act initiated the deregula-

tion of the airline industry. In order to soften the blow

that deregulation could have on airline industry workers,

the Act contained an employee protection provision. That

provision, section 1552, required covered air carriers, like

Piedmont, to give the first right of hire to protected em-

ployees, like Crocker, who were involuntarily placed on

furlough or terminated by a covered air carrier due to

either bankruptcy of the air carrier or a major contraction

in the air carrier’s work force. 49 U.S.C. § 1552(d)(1).

Crocker contends that Piedmont violated section 1552

by hiring non-protected employees before and instead of

him. Crocker brings his claim under section 1522 and

requests injunctive relief; in the form of a court order

directing Piedmont to hire plaintiff as a pilot with rank,

duties, seniority, and compensation commensurate with

his skill, and seniority back dated to the date of his ap-

plication; as well as back pay. Complaint at 4. Plaintiff

also requests a trial by jury. /d.

At the direction of this court’s 8/11/89 Memorandum

Opinion and Order, defendant filed a memorandum which

addresses che availability of both injunctive relief and a

trial by jury under section 1522. Defendant contends

neither is available, and the court construes defendant’s

memorandum as a motion to strike plaintiff's request for

injunctive relief and jury demand. Plaintiff has re-

sponded and these issues are ripe for resolution. The

court concludes that injunctive relief is available under

section 1522 but that a trial by jury is not available be-

cause of the relief plaintiff has requested.

II. ANALYSIS.

Section 1552 does not expressly provide for a private

cause of action should an air carrier fail to provide pro-

tected employees with the first right of hire. This court

already has concluded that a cause of action can be im-

plied in those circumstances. Crocker v. Piedmont Avia-

Lr iaieciliaiieiiamiiiieiiiiiiiiiieaiiiiiil

35a

tion, 696 F.Supp. 685, 688 (D.D.C. 1988). The court

now must determine the remedies available to the pro-

tected employee, a decision that will in turn decide

whether a jury is the appropriate fact finder.

Given section 1552’s silence as to private enforcement

actions, it is no surprise that section 1552 also is silent

as to the remedial relief available to successful litigants.

Piedmont contends that neither injunctive relief nor a

jury trial is available to plaintiff. The court addresses

each issue in turn.

A. The Availability of Injunctive Relief Under Sec-

tion 1552.

The Supreme Court has held that “all appropriate relief

is available in an action brought to vindicate a federal

right when Congress has given no indication of its purpose

with respect to remedies.” Franklin v. Gwinnett County

Public Schools, US. , 112 S.Ct. 1028, 1034

(1992). This has been so even when the cause of action

at issue is implied. Jd. at 1032, 1035.

This court accordingly concludes that injunctive relief

is a remedy available under section 1552. The power of

this court to enforce the Act implies the power to make

effective the right of recovery afforded by the Act. “ ‘And

the power to make the right of recovery effective implies

the power to utilize any of the procedures or actions

normally available to the litigant according to the exigen-

cies of the particular case.’” J.I. Case Co. v. Borak, 377

U.S. 426, 433-34 (court not limited to remedy of de-

claratory judgment in its enforcement of Securities and

Exchange Act of 1934), quoting Deckert v. Independence

Shares Corp., 311 U.S. 282, 288 (1940).

Piedmont opposes this position on a number of grounds

but each lacks merit. First, Piedmont contends that when

Congress has desired that injunctive relief be available in

a federal statutory action, Congress explicitly has so pro-

36a

vided. Piedmont cites Title VII and the ADEA as exam-

ples of this practice. Because Congress has not specified

that this form of relief is available under the Act, argues

Piedmont, this court cannot resort to injunctive relief.

This theory would be helpful here if the action at issue

was one expressly allowed by statute, but it is not. Con-

gress’ failure to expressly provide for injunctive remedies

under the Act means nothing here because Congress failed

to even provide for the underlying cause of action. See

Franklin, 112 S.Ct. at 1035.

Because Congress was silent as to the remedies avail-

able under the Act, the court can determine if Congress

intended to limit application of the traditional presump-

tion in favor of all appropriate relief only by evaluating

the state of the law when the legislature passed the Act.

Id. at 1035; see Merrill Lynch, Pierce, Fenner & Smith

v. Curran, 456 U.S. 353, 378 (1982). When Congress

passed the Act in 1978, the Supreme Court followed the

presumption that the denial of a remedy was the excep-

tion rather than the rule. See Franklin, 112 S.Ct. at 1036

(presumption has been state of law since the early nine-

teenth century). Given this fact and Congress’ complete

silence on all aspects of this issue, the court must con-

clude that injunctive relief is an available remedy in Act

failure-to-hire actions. Cf. Franklin, 112 S. Ct. at 1036

(presumption in favor of all remedies being available

applies to implied right of action under Title IX).

Piedmont next argues that injunctive relief is inappro-

priate here because Crocker obtained and ultimately left

alternative employment while his application was pending

with Piedmont. Piedmont claims that the court should

not be able to force Piedmont’s employment of Crocker

now that Crocker has held several other pilot positions

with smaller airlines. This argument would have merit if

Crocker had not been under a statutory duty to mitigate

his unemployment time while his application with Pied-

mont was pending. The Act obligated protected em-

37a

ployees to accept reasonably comparable employment

when offered and penalized protected employees if they

did not do so. 49 U.S.C. § 1552(b)(2). The fact that

Crocker sought interim employment while waiting to hear

from Piedmont demonstrates only that he mitigated the

damages he can now seek from Piedmont. Crocker’s ac-

tions at the time did not excuse Piedmont from its statu-

tory duty then, and they do not now remove the avail-

ability of injunctive relief. See Crocker v. Piedmont Avia-

tion, 933 F.2d 1024, 1026-27 (D.C. Cir. 1991).

Piedmont also argues that injunctive relief is no longer

appropriate in failure-to-hire actions because Piedmont

and every airline’s duty to hire protected employees ex-

pired in 1988. Congress limited the duration of section

1552 to ten years, the period between 1978 and 1988.

49 U.S.C. § 1552(d)(1). Piedmont’s obligation to give

the right of first hire to protected employees, therefore, did

end in 1988. Here, however, the alleged wrong occurred

in 1984: Crocker, 696 F.Supp. at 693; a date during the

ten year time period. The passage of the sunset date has

not retroactively eliminated Piedmont’s duty toward

Crocker or changed the availability of injunctive relief as

a remedy.

Piedmont’s last argument against the availability of in-

junctive relief goes to the appropriateness of injunctive

relief in this case. Piedmont’s basic argument is that

Crocker is not qualified to be a Piedmont pilot so Pied-

mont should not be ordered to hire him. This argument

does not demonstrate the unavailability of injunctive relief

as a remedy. It only addresses the appropriateness of

such relief in this case. The court cannot address this

argument until trial, when it has the full range of factual

evidence before it.

Because Congress did not address the remedies avail-

able under the Act, the court must apply the long stand-

ing presumption that all remedies are available to Crocker

in this action. The court concludes that it at least has

38a

the option of issuing injunctive relief in this case. Ac-

cordingly, Piedmont’s motion to strike Crocker’s request

for injunctive relief is denied. The court will wait until

trial to decide whether injunctive relief is appropriate.

B. The Availability Of A Jury Trial On The Backpay

Issue.

Because the Act does not expressly provide for a cause

of action, it necessarily does not provide for the avail-

ability of a jury trial on the cause of action this court

implicitly has found to exist. The court then must deter-

mine whether the Constitution confers a right to a jury

trial for plaintiff on his claim under the Act. See Tull v.

United States, 481 U.S. 412, 417 & n.3 (1987).

The right to a jury trial arises under the Seventh

Amendment of the Constitution, which states that “fi]n

Suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be

preserved.” U.S. Const., amend. VII. Because Crocker’s

action is statutory and has no common law analogue, he

is entitled to a jury trial only if his suit is one in which

“legal rights [are] to be ascertained and determined, in

contradistinction to those where equitable rights alone

[are] recognized, and equitable remedies [are] admin-

istered . . . .” Curtis v. Loether, 415 U.S. 189, 193

(1974); quoting Parsons v. Bedford, 3 Pet. 433, 446-47

(1830).

Here Crocker requests two forms of relief: an order

directing Piedmont to hire him and an order directing

Piedmont to compensate him with backpay. The former

request clearly involves an equitable issue in need of

equitable relief and is not jury triable. That much

Crocker admits. In dispute is the legal or equitable na-

ture of Cocker’s request for backpay.

Crocker contends that his request for backpay and

benefits constitutes a request for “damages” and that ac-

tions for damages are actions at law. Crocker may style

_——————————

39a

the relief he requests as “damages” but that label does

not change the inherently equitable nature of the remedy

of backpay.

The Supreme Court has stated that the remedy of back-

pay is equitable in nature. Franklin, 112 S.Ct. at 1038.

Congress also has denominated backpay to be an equi-

table remedy. 42 U.S.C. § 2000e-5(g)(1). The fact that

backpay is monetary in form does not transform this

remedy into the legal one of damages. Curtis, 415 U.S.

at 196. Plaintiff cites many cases for the general propo-

sition that monetary remedies are legal remedies con-

trolled by a jury, see Plaintiff's Memorandum at 5, but

those cases fail to address the uniquely equitable nature

of backpay.

Backpay and money damages both may be monetary

in form but that is their singular similarity. Backpay

and money damages are distinguishable because of the

different purpose each serves. Backpay seeks to redress

purely economic harm and give back to a party what he

claims rightly belongs to him. Money damages redress

injuries and instead seek to compensate a party for some

wrong the party suffered. That is why money damages

tend to be the remedy of choice in tort actions. See

Curtis, 415 U.S. at 195.

These distinctions prevent backpay’s monetary form

from transforming it into a legal remedy. Because

Crocker’s request for injunctive relief and backpay con-

stitutes a request for equitable relief only, Crocker is not

entitled to a jury trial of his claims. Piedmont’s motion

to strike Crocker’s jury demand is granted.

I. CONCLUSION.

For the reasons stated, the court concludes that it is

within its power to grant injunctive relief in this case

because Congress was silent as to the remedies available

to plaintiffs in Airline Deregulation Act claims. The

court concludes that no right to a jury trial exists here,

40a

however, because Crocker has requested only equitable

relief on his claim. An Order to this effect shall issue

this date.

/s/ Royce C. Lamberth

Royce C. LAMBERTH

United States District Judge

Date: May 4, 1993

4la

[Filed May 4, 1993]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 86-1673 (RCL)

HosartT N. CROCKER, JR.,

Plaintiff,

Vv.

PIEDMONT AVIATION, INC.,

Defendant.

ORDER

This case comes before the court on defendant Pied-

mont Aviation Inc.’s memorandum concerning the avail-

ability to plaintiff of a jury trial and injunctive relief.

The court treats Piedmont’s memorandum as a motion to

strike plaintiff's request for injunctive relief and jury de-

mand. Plaintiff has responded and the issue is ripe for

resolution.

For the reasons stated in the Memorandum Opinion

issued this date, it is hereby ORDERED that:

1. Defendant’s Motion to Strike plaintiffs’ request for

injunctive relief is DENIED. Injunctive relief is available

in plaintiff's cause of action and evidence on that issue is

admissible at trial.

2. Defendant’s Motion to Strike plaintiff’s jury demand

is GRANTED. Plaintiff has no right to a jury trial be-

cause he has requested only equitable relief.

42a

3. Trial is re-scheduled to commence as a bench trial at

10:00 a.m. on May 17, 1993.

SO ORDERED.

/s/ Royce C. Lamberth

Royce C. LAMBERTH

United States District Judge

Date: May 4, 1993

43a

[Filed Jul. 22, 1993]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 86-1673 (RCL)

HoBART N. CROCKER, JR..,

Plaintiff,

Vv.

PIEDMONT AVIATION, INC.,

Defendant.

MEMORANDUM OPINION

This case came before the court for trial on May 17

and 18, 1993. Both parties then submitted proposed find-

ings of fact and conclusions of law, after which the court

heard their closing arguments. Based upon the testimony

submitted at trial, the trial exhibits, the parties’ submis-

sions, and closing arguments, the court concludes that it

must rule for the defendant.

This case arises under the Airline Deregulation Act of

1978. That Act initiated the deregulation of the airline

industry. To assist airline employees who might be dis-

located as a result of airline deregulation, Congress in-

cluded an employee protection provision in the Act. That

provision provides that:

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

44a

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 em-

ployees which held a certificate issued under section

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. Any employee who is fur-

loughed or otherwise terminated (other than for

cause), and who is hired by another air carrier under

the provisions of this subsection, shall retain his

rights of seniority and right of recall with the air

carrier that furloughed or terminated him.

49 U.S.C. § 1552(d)(1). Pursuant to the Act, the De-

partment of Labor promulgated regulations that permitted

covered carriers to apply their own non-age-based qualifi-

cation standards and prerequisites when considering

whether to hire a protected employee. 29 C.F.R.

§§ 220.11(a), 220.20(a), 220.21 (1989).

Plaintiff, Hobart N. Crocker, brings his claim under

the Act, and asserts that Piedmont denied him his statu-

tory first right of hire when Piedmont began hiring non-

protected employees in March, 1984. Piedmont defends

its actions by contending that Crocker lacked the qualifica-

tions necessary to receive an offer of employment. Spe-

cifically, Piedmont contends that Crocker’s previous FAA

violation disqualified him from Piedmont’s consideration.

As the court’s Findings of Fact and Conclusions of Law

make clear, the court concludes that Piedmont did not

violate Crocker’s statutory right because Crocker’s FAA

violation disqualified him from employment with Piedmont.

45a

I. FINDINGS OF FACT.

1. Crocker was employed as a pilot by Air New Eng-

land, Inc. (“ANE”) from June 18, 1973 until ANE’s

termination of operations at the end of October 1981. Tr.

5/17/93 at 15. Beginning in February of 1982, Crocker

sent letters with resumes to approximately 70 airlines and

requested application forms from them. /d. at 16-18; Pi.

Exh. 26. On April 6, 1982, Crocker sent such a letter

to Piedmont. Tr. 5/17/93 at 18; Pl. Exh. 3. At that

time, Crocker was 56 years old. Tr. 5/17/93 at 18.

2. Piedmont responded to Crocker’s letter by sending

him a cover letter, a blank application form, and a single

page document which described the minimal qualifications

for Piedmont pilot applicants. Tr. 5/18/93 at 138-40;

Pl. Exh. 3; Def. Exh. J. Crocker completed the blank

Piedmont pilot application form on July 1, 1982, only

after he received a telephone call from Ray Welch, Pied-

mont’s Director of Personnel Administration, in which

Welch invited Crocker to an interview at Piedmont on

July 6, 1982, Tr. 5/17/93 at 51, 80. Crocker submitted

his completed application form to Piedmont when Ray

Welch and Captain Gene Sharp, Piedmont’s Vice Presi-

dent of Flight Operations, interviewed Crocker at Pied-

mont’s headquarters in Winston-Salem, North Carolina, on

July 6, 1982. Id. at 20; Tr. 5/18/93 at 82; Stipulated

Fact No. 3.

3. On October 25, 1978, the New England Regional

Counsel for the Federal Aviation Administration (“FAA”)

charged Hobart Crocker with violating FAA regulations

on April 15, 1978 while acting as pilot-in-command of an

ANE DHC-6 aircraft flying between Boston, Massachu-

setts, and Lebanon, New Hampshire. Def. Exh. I at

2636-37. The FAA alleged that after detecting a fuel

leak in the aircraft cabin, Crocker flew the aircraft to its

scheduled destination, rather than diverting to the nearest

available airport. /d. at 2637. The FAA imposed a 60

day license suspension for the violation. Jd. at 2643.

46a

4. Crocker appealed the FAA violation to an inde-

pendent administrative law judge of the National Trans-

portation Board. Jd. An attorney from the Airline Pilots

Association represented Crocker at the appeal hearing

and Crocker was permitted to submit evidence concern-

ing his version of the incident. Tr. 5/17/93 at 68-69.

After the hearing, the administrative law judge concluded

that the fuel leak had made “the aircraft unairworthy,

“the pilot’s judgment [had been] improper” in not stop-

ping at an airport closer than Lebanon, and that Crocker

had engaged in the “careless” operation of the aircraft

in violation of FAA regulations. Def. Exh. I at 2643-

2645. The administrative law judge nevertheless reduced

Crocker’s suspension to 30 days. /d.

5. During Crocker’s July 6th interview, Capt. Sharp

questioned Crocker about his FAA violation. Tr. 5/18/

93 at 85-86, 94-95. Capt. Sharp questioned Crocker

about the FAA violation because Crocker had listed it

on his Piedmont application. Pl. Exh. 4 at 320. Capt.

Sharp’s interviewing practice was to have any interviewee

with an FAA violation explain that violation so that

Sharp and the other interviewers could make a judgment

call as to whether the violation was a valid one. Tr.

5/18/93 at 95. Despite this practice, Capt. Sharp could

recollect no instance in which Piedmont had ever hired

a pilot who the FAA had sanctioned with a 30 day

license suspension. /d.

6. After discussing the violation with Crocker, Capt.

Sharp was concerned with the substance of Crccker’s

FAA violation as well as Crocker’s attitude regarding it.

Id. at 86. Capt. Sharp considered the fuel leak to be a

serious problem and he did not think that he would have

continued on to Lebanon as Crocker had. /d. More im-

portantly, C pt. Sharp did not appreciate Crocker’s

casual disregard for the severity of the violation. /d.

7. There are various levels of FAA violations, includ-

ing a warning letter, license suspension, and license revo-

47a

cation. Id. at 95. The FAA rarely suspends a pilot’s

license, as it did with Crocker, and has imposed this

penalty on less than one percent of all pilots. Jd. at 95-

96. Crocker’s attitude regarding his license suspension

ignored the severity of this penalty.

8. Crocker has maintained since 1978 that his FAA

violation was unwarranted, politically motivated, and that

he was correct in deciding to continue on the flight and

not land at the nearest available airport. Tr. 5/17/93 at

71, 102-105. In his December 1982 application for em-

ployment with Coral Air, Crocker described his view of

the FAA violation as follows:

Failure to land at nearest suitable airfield in point

of time with fuel !eak. Lost court case that had

political implications with Director of Publicity of

Dartmouth U. and Senator McIntyre of New Hamp-

shire. I in fact had landed at the nearest suitable

airport (LEB) but had difficulty proving it. Al-

though the leak was not a critical hazard the FAA

claimed that I should have landed at an obscure

unattended grass landing strip. I would still do it

my way. HNC.

Def. Exh. XX; Tr. 5/17/93 at 71-73. Crocker has felt

this way since he first incurred the violation. Tr. 5/17/

93 at 71-73. The court finds that Crocker communicated

this same attitude during his July 6, 1983 interview with

Capt. Sharp and Ray Welch.

II. CONCLUSIONS OF LAW.

1. In order to prevail on his claim under the Airline

Deregulation Act, Crocker must prove:

a) That he is a “protected employee” under section

43;

b) That he applied for employment with a covered

carrier (Piedmont) when the carrier was hiring

48a

additional employees for positions in that occu-

pational specialty from outside its workforce;

c) That he complied with the carrier’s normal ap-

plication procedures;

d) That he expressly provided the carrier with no-

tice of his protected status under Section 43(d);

e) That he fulfilled all of the carrier’s qualifications

and requirements for employment in that occupa-

tional specialty; and

f) That he was not hired for a position and that

the carrier instead hired non-protected applicants

from outside its workforce.

49 U.S.C. § 1552; 29 C.F.R. §§ 220.11(a), 220.20(a),

220.21(a) (1987); Crocker v. Piedmont Aviation, Inc.,

743 F. Supp. 1, 2-3 (D.D.C. 1989); Crocker v. Pied-

mont Aviation, Inc., 696 F. Supp. 685, 693 (D.D.C.

1988); Robinson v. American Airlines, 722 F. Supp.

757 (D.D.C. 1989), affd 908 F.2d 1020 (D.C. Cir.

1990).

2. Crocker’s claim does satisfy the first two of these

requirements. Plaintiff Hobart Crocker, Jr. was employed

as an air line pilot by Air New England between July

1973 and October 1981, and was a protected employee

within the meaning of Section 43(d) of the Airline De-

regulation Act. Crocker v. Piedmont Aviation, Inc., 743

F. Supp. 1, 3 (D.D.C. 1989); Crocker v. Piedmont

Aviation, Inc., 685 F. Supp. 685 (D.D.C. 1988). De-

fendant Piedmont Aviation, Inc. was a covered air car-

rier which held a certificate pursuant to Section 1371

prior to October 24, 1978, and thus was subject to the

provisions of Section 43(d) of the Airline Deregulation

Act. 49 U.S.C. §1552(d)(1); Crocker v. Piedmont

Aviation, Inc., 741 F. Supp. 241, 242 (D.D.C. 1989),

rev'd on other grounds, 933 F.2d 1024 (D.C. Cir.

1990).

49a

3. The court concludes that Crocker’s claim fails de-

spite Crocker’s protected and Piedmont’s covered status,

because Crocker was not qualified for a job with Pied-

mont. Robinson, 908 F.2d at 1023. The implementing

regulations for the Airline Deregulation Act make clear

that “each designated employee must satisfy all qualifica-

tions or other requirements [other than initial hiring

age] established by the hiring carrier” before they can

claim their first right of hire. 29 C.F.R. §§ 220.11(a),

220.21(a). An airline can successfully defend itself

against a claim under the Act if it can show that it re-

fused to hire a protected employee based on his failure

to satisfy the airline’s non-age-based requirements. Pied-

mont has done so here.

4. Piedmont has presented sufficient evidence to prove

that it enforced a bona fide hiring standard when it re-

jected Crocker. That standard was Piedmont’s consistent

practice of refusing to hire any pilot applicant who had

received a 30 day license suspension from the FAA. The

safety concerns that justify this sort of standard are ob-

vious. Piedmont presented evidence, in the form of un-

contested testimony from Capt. Sharp, that the FAA

sanctions fewer that one percent of all pilots with this

severe of a penalty, that consequently this type of

reprimand is severe and must be taken seriously, and

that Piedmont could in good faith question the safety

standards of any pilot applicant with this type of viola-

tion on his record. Piedmont also presented evidence,

again in the uncontested testimony of Capt. Sharp, that

it had never hired a pilot applicant with this type of FAA

violation in his or her record. In view of an airline’s

substantial obligation to operate with “the highest pos-

sible degree” of care, see 49 U.S.C. 1421(b), Piedmont’s

prohibition on hiring pilot applicants with such violations

is justifiable and constitutes 2 bona fide non-age-based

hiring standard. Cf. Robinson, 908 F.2d at 1023 (air-

line safety concerns can justify refusal to hire pilot appli-

cant whose weight and blood pressure are within FAA

50a

standards but above more stringent standards enforced

by hiring airline). Given this evidence, the court con-

cludes that Crocker’s FAA violation extinguished his

claim to a first right of hire from Piedmont.

5. Piedmont’s legitimate safety concerns regarding

Crocker’s FAA violation were compounded in this case

because of the circumstances surrounding that violation.

Those circumstances include: (a) the involvement of an

in-flight fuel leak and Crocker’s apparent poor judgment,

and (b) Crocker’s consistent position that the violation

was politically motivated and that he was not at fault;

and (c) Crocker’s representations to Piedmont, his poten-

tial employer, that this FAA violation was insignificant

despite its rarity. The court concludes that as a potential

employer Piedmont justifiably could be troubled not only

by the existence of a safety violation in Crocker’s record

but also by Crocker’s attitude and treatment of that vio-

lation. Even if the FAA violation alone was insufficient

to disqualify Crocker, Crocker’s attitude toward his viola-

tion also could have disqualified him from employment

with Piedmont. Piedmont legitimately could deny em-

ployment to a pilot applicant who had such a casual

attitude about such a severe violation.

6. The court notes that Crocker failed to rebut any

of Piedmont’s evidence on this issue. Plaintiff submitted

no proposed findings or conclusions regarding Crocker’s

FAA violation. Plaintiff's counsel also failed to cross-

examine Capt. Sharp regarding the significance Sharp

attached to Crocker’s FAA violation. For example, Capt.

Sharp testified that he always allowed pilot applicants to

explain the circumstances surrounding the FAA violation,

but plaintiff's counsel made no attempt to question Capt.

Sharp as to why this was his practice. Plaintiff's counsel

also failed to question Capt. Sharp about the significance

he attached to the FAA violation and Crocker’s attitude

regarding it. Plaintiff, in short, made no attempt to con-

tain the significance of this blotch on his record and on

his chances of getting hired by Piedmont.

5la

7. Because Piedmont demonstrated that it declined to

hire Crocker because he did not meet Piedmont’s pilot

standards, Crocker has the burden of proving, by a pre-

ponderance of the evidence, that Piedmont’s reason for

refusing to hire him was a pretext for not affording him

rights as a protected employee or for discriminating

against him based upon his age. Robinson, 722 F. Supp.

at 763.

8. Plaintiff did offer some evidence that Piedmont

denied Crocker his first right of hire because of Crocker’s

age and not because of his failure to satisfy any non-age-

based standards. The court does find the age issue troub-

ling, but as the court already has noted, plaintiff made

no effort to undermine the significance of the FAA viola-

tion specifically with this evidence. Crocker made no at-

tempt to prove that Piedmont refused to hire him because

of his age rather than his FAA violation.

9. Even if Crocker had made an age pretext argu-

ment regarding his FAA violation, the court would not

grant such a contention any consideration. Crocker’s

FAA violation was not some makeweight that Piedmont

relied upon to justify its refusal to hire him. Crocker’s

FAA violation represented an objectively determinable

disqualifying factor in Crocker’s record. Piedmont never

had to consider Crocker’s age and contrive some pretext

for depriving Crocker of a job based on his advanced

years. That would only have been necessary if Piedmont

had no better reason for denying Crocker employment.

That was not the case here. Crocker’s FAA violation and

his attitude toward it provided Piedmont with a solid,

independent, and justifiable basis for denying Crocker his

first right of hire. Given Capt. Sharp’s uncontested testi-

mony that Piedmont has never hired a pilot applicant who

has received this sort of violation, the court finds that

Piedmont was statutorily justified in declining to offer

Crocker employment on that basis despite his status as

a protected employee.

52a

III. CONCLUSION.

Under the Aijrline Deregulation Act, Hobart N.

Crocker, Jr. was a protected employee entitled to a first

right of hire from Piedmont Airlines when Crocker ap-

plied for a pilot’s position with Piedmont in 1982. That

statute’s implementing regulations conditioned that right

upon Crocker’s satisfaction of Piedmont’s bona fide non-

age-based employment requirements. One of those Pied-

mont requirements was that a pilot applicant have no sig-

nificant FAA violations in his record. Crocker’s FAA

violation and corresponding 30 day license suspension

prevented his satisfaction of that requirement and extin-

guished his claim to a first right of hire. Accordingly, the

court concludes that judgment shall be entered in favor

of the defendant Piedmont Airlines. An appropriate Order

shall issue this date.

/s/ Royce C. Lamberth

Royce C. LAMBERTH

United States District Judge

Date: Jul. 21, 1993

53a

[Filed Jul. 22, 1993]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 86-1673 (RCL)

HOBART N. CROCKER, JR.,

Plaintiff,

» #

PIEDMONT AVIATION, INC.,

Defendant.

ORDER /

This case came before the court for trial on May 17

and 18, 1993. Both parties then submitted proposed

findings of fact and conclusions of law, after which the

court heard their closing arguments. Based upon the testi-

mony submitted at trial, the trial exhibits, the parties’

submissions, and closing arguments, it is hereby

ORDERED that:

Judgment shall be entered in favor of the defendant.

SO ORDERED.

/s/ Royce C. Lamberth

Royce C. LAMBERTH

United States District Judge

Date: Jul. 21, 1993

54a

[Filed Apr. 19, 1995]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 93-7141

HoBarT N. CROCKER, JR.,

Appellant,

Vv.

PIEDMONT AVIATION, INC.,

Appellee

and Consolidated Case No. 93-7142

BeFore: Williams, Ginsburg and Rogers, Circuit Judges

ORDER

Upon consideration of appellee’s Petition for Rehear-

ing, filed March 31, 1995, it is

ORDERED, by the Court, that the petition is denied.

Per Curiam

FOR THE COURT:

MARK J. LANGER

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

55a

[Filed Apr. 19, 1995] |

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT |

No. 93-7141

HoBArRT N. CROCKER, JR.,

Appellant,

PIEDMONT AVIATION, INC.,

Appellee

and Consolidated Case No. 93-7142

BEFORE: Edwards, Chief Judge; Wald, Silberman,

Buckley, Williams, Ginsburg, Sentelle, Hender-

son, Randolph, Rogers, Tatel, Circuit Judges

ORDER

Appellee’s Suggestion For Rehearing /n Banc has been

circulated to the full Court. No member of the Court

requested the taking of a vote thereon. Upon considera-

tion of the foregoing, it is

ORDERED, by the Court in banc, that the suggestion

is denied.

Per Curiam

For THE CourRT:

MarK J. LANGER

Clerk

/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

ee)

“<

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.