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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 865

## Text

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)

ii

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.

ee

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

iv

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

;

Vv
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

i
4

vi

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)

2
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

3

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

4

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

5

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

6

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 §

+
4
3
F
i
4
3
2
E

7

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-

8

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

is

fai plage.» nd al atin del

>. a yt eee pe

9

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

10

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

11

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)

12

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

13

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) ;

14

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

15

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.

16

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).

17

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-

|

18

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.

19

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.

*© A petition for certiorari has been filed in Schwartz v. Gregori,
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).

20

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).

21

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

22

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

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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.

|
i
j
;
|

2a

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).

3a

bia’s general three-year tort statute of limitations. We
therefore remand the case for a jury trial.

I.

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

4a

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

5a

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.

6a

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-

7a

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

8a

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 ¢

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2093%3A1. Public record. Not legal advice.