Petition for Writ of Certiorari — Allied Pilots Ass'n v. American Airlines, Inc.

fy Supreme Court, us. = :

ad!)

10

OLS 16 DEC 2 0 aggy

rice Ol Tit CLERK

IN THE

Supreme Court of the Anited States

ALLIED PILOTS ASSOCIATION,

RICHARD T. LAVoy,

and

BRYAN A. MAYHEW,

Petitioners,

Vv.

AMERICAN AIRLINES, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

EDGAR N. JAMES

JAMES & HOFFMAN, P.C.

1146 19th Street, N.W.

Washington, D.C. 20036

(202) 496-0500

ROBERT M. WEINBERG

(Counsel of Record)

LAURENCE GOLD

BREDHOFF & KAISER, P.L.L.C.

805 15th Street N.W., Suite 1000

Washington, D.C. 20005

(202) 842-2600 |

Counsel for Petitioners

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WAasHiINGTON, D. C. 20001

o> ~

~N

QUESTION PRESENTED

Whether the contempt/procedural due process principle of

Mine Workers v. Bagwell, 512 U.S. 821 (1994), requires that

a compensatory civil contempt case involving a complex

injunction, disputed factual issues, and a serious sanction for

completed acts (here a $45,500,000 damages award) be

adjudicated in accord with the basic due process principles

governing the conduct of civil damages cases generally

embodied in the Fifth Amendment of the United States

Constitution—and, in the Federal Courts, the Federal Rules of

Civil Procedure—and not through expedited procedures of a

summary nature?

i)

II. The Court of Appeals’ Decision ............0seseee

REASONS FOR GRANTING THE WRIT

CONCLUSION ...0....ccccccccccesesececeneee Ee OS ee

iV

TABLE OF AUTHORITIES

CASES Page

Alberti v. Klevenhagen, 46 F.3d 1347 (Sth Cir.—

RESP R AEE SA AMA PON ti aes AERP ed 16

Bloom v. Illinois, 391 U.S. 194 (1968) ............. 15, 22, 24

Brotherhood of Locomotive Firemen &

Enginemen Bangor & Aroostook R.R., 380

Fis FIO GAG. Cee TOT) ccccisnesitnicticdtinssathntsies 25

City of Monterey v. Del Monte Dunes Ltd, 119 S.

CR Te ee ecictitiaiadiebensinliacieigcisiink inti ais 28

Conley v. Gibson, 355 U.S. 41 (195Pxnu.....cceeeeeee 27

Cooke v. United States, 267 U.S. 517 (1925) ........ 15

Gompers v. Bucks Stove & Range Co., 221 U.S.

GE CIEE) scccscnesstiacctinetnasnnneniguditosiatiitanineincinee 15, 19

Green v. United States, 356 U.S. 165 (1958)......... 24

Latrobe Steel Co. v. United Steelworkers, 545 ‘

Feds RSID COG CET Peiisccaccncinncisntntnscntannitsanion 23, 25

Mine Workers v. Bagwell, 512 U.S. 821 (1994) ....passim

NLRB vy. Blevins Popcorn Co., 659 F.2d 1173

ERAS, SAE, BEBE) wpinenitcinsikesiineiiiiiaaiienaiabiatdilsacoeciale 25

~ Nelson v. Adams USA, 120 S. Ct. 1579 (2000)...... 26, 27

Placid Refining Co. v. Terrebonne Fuel & Lube,

108 F.3d 609 (Sth Cir. 1997) ............sccccsssssseeeees 16

Rogers v. Webster, 776 F.2d 607 (6th Cir. 1985) .. a7

Ryals v. United States, 69 F.2d 946 (Sth Cir.

BOD ccictnenitdios imitated iat ac 16

Shillitani v. United States, 384 U.S. 364 (1966)... 25

Teamsters v. Terry, 494 U.S. 558 (1990).............. 28

United States v. Powers, 629 F.2d 619 (9th Cir.

TTD sievisicsthsnsipsitnsshinesnncasiesaphestiacdelinitaica tc 17

Worden v. Searls, 121 U.S. 14 (1887) .................0. 14

ee

Vv is

TABLE OF AUTHORITIES—Continued a4

STATUTES

2B USC. § 12501) sc rscerscencass oe

OTHER —

Doug Rendleman, “Compensatory Contempt:

Plaintiff's Remedy When a Defendant Violates

an Injunction,” 1980 U. Ill. L. Forum 971

_—

PETITION FOR A WRIT OF CERTORARI

The Allied Pilots Association, Richard T. LaVoy, and

Brian A. Mayhew pray that a writ of certiorari issue to review

the decision and judgment of the United States Court of

Appeals for the Fifth Circuit in American Airlines, Inc. v.

Allied Pilots Ass'n, No. 99-10814 (Sept. 21, 2000, as revised

Sept. 27, 2000).

DECISIONS BELOW

The opinion of the Court of Appeals is reported at 228 F.3d

574, and is reproduced as Appendix A in the separately

bound appendix to this Petition (“Pet. App.”) at pp. 1a-23a.

The order of the United States District Court for the Northern

District of Texas judging the Petitioners in civil contempt is

unreported and is reproduced as Appendix B at Pet. App. 24a-

28a. The District Court’s findings of fact and conclusions of

law on contempt liability filed with its contempt order is

unreported and is reproduced as Appendix C at Pet. App. 29a-

38a. The District Court’s final opinion on contempt liability

and damages is reported at 53 F.Supp.2d 909, and is

reproduced as Appendix D at Pet. App. 39a-96a.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered

September 21, 2000. This Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution

states, in pertinent part: “No person shall be ... deprived of

life, liberty, or property, without due process of law .. .”

2

STATEMENT OF THE CASE

I. THE DISTRICT COURT PROCEEDINGS

A. Introduction. In this case, the United States District

Court for the Northern District of Texas, Wichita Falls

Division (Kendall, D.J.), found that petitioners—the Allied

Pilots Association (“APA”); its President, Richard LaVoy;

and its Vice-President, Brian Mayhew—violated the District

Court’s temporary restraining order (“TRO”) and, on the

basis of that liability finding, imposed on petitioners a

$45,500,000 compensatory civil contempt sanction in favor

of respondent American Airlines, Inc. (“American”).

The expedited liability proceedings that resulted in this

judgment were summary in their nature:

© a February 10' American motion for a TRO, a non-

evidentiary hearing that afternoon, and the District

Court’s issuance of the TRO at 4:00 p.m. that day;

e a February 11 American motion for an order to show

cause why defendants (petitioners here) should not be

held in contempt and a District Court show cause

order—both stated in general and conclusory terms

and both served simultaneously on petitioners at 5:00

p.m. that afternoon;

e a February 12 hearing convened at 10:00 a.m. and

concluded that afternoon; and

e a February 13, 10 a.m. conclusive liability finding.

The “damages” proceedings were similarly abrupt and

irregular: a February 17 damages hearing presentation by

American affording petitioners no prior discovery and at

hich the District C luded petiti f isiting

the issue of liability while permitting American to supplement

its liability case; an April 12 damages hearing presentation by

All dates are in 1999 unless otherwise specified.

bhi simatic:

In detail, the District Court proceedings unfolded here as

follows.

B. The TRO Proceedings. This case arose out of a labor

dispute between American and APA, a national labor union

certified under the Railway Labor Act (“RLA”) to represent

some 9,300 American pilots. The dispute stemmed from

American’s acquisition of Reno Air, Inc. and American’s

announced intent to operate Reno without observing the terms

and conditions of the relevant collective bargaining

agreement. On February 5, after negotiations over the

integration of Reno failed, APA members began a sick-out.

On February 10, American filed its complaint against APA

and its national officers, directors and bargaining committee

for injunctive relief and damages, alleging that the sick-out

violated the RLA. With the complaint, American also filed a

motion for a TRO. On that same day, the District Court held

a non-evidentiary hearing, lasting approximately two hours,

and then issued its TRO at 4:00 p.m. R. 181, 114.

The TRO contained one generally prohibitory -paragraph

enjoining the defendants and all those legally associated with

them from, in essence, authorizing the continuation of, or

participating in, the sick-out.2 The TRO also stated one

general command, requiring the defendants and those acting

in concert with them to “take all reasonable steps in their

power” to prevent the continuation of the sick-out. The TRO,

lastly, imposed a number of specific, affirmative obligations,

requiring the defendants, inter alia, to: direct the APA

2 The complete text of the TRO is to be found infra pp. 29-30 in the

Addendum hereto.

4

members “to resume their normal working schedule”; issue a

notice to the APA membership, “by the most expeditious

means possible, . . . of the issuance, content and meaning of

the TRO”; instruct the members to “cease and desist” from

engaging in the sick-out; post the TRO notice on APA’s web

site; include the contents of the TRO “on all recorded

telephone hotlines”; report all compliance efforts to the court

by 12:00 noon on February 12, 1999.

C. APA’s TRO Compliance Efforts. Immediately after the

February 10, 4:00 p.m. issuance of the TRO, APA, through

LaVoy and Mayhew, began its compliance efforts by

drafting, and issuing at 7:30 p.m. that night, an initial alert on

the APA telephone hotline and web site that quoted the

entirety of the TRO’s prohibitory paragraph and advised the

membership of the following: the District Court has issued a

TRO enjoining APA; APA attorneys are reviewing the TRO;

APA “will comply with the Judge’s Order”; and APA will

provide the membership “with more specific information

about the [TRO] as soon as we have had an opportunity to

complete our review.” The alert—before quoting the TRO’s

prohibitory paragraph directed at “Defendants . . . their

agents, successors, deputies, servants and employees, and all

persons acting by, in concert with, through or under them, or

by and through their orders”—correctly identified the -

“defendants” referred to in that paragraph, who were not

otherwise identified in the text of the TRO, as “APA’s

national officers, board of directors, and general counsel.”

R.126. i

The following day, February 11, APA issued its full TRO

notice/return-to-work-directive to the membership as called

* For all relevant purposes, the definition was accurate; the defendants

were the APA, its individual national officers, its individual board

members, and its negotiating committee. The only technical inaccuracy

was its erroneous inclusion of APA’s general counsel in its identification

of the defendants.

5

for in the TRO. The notice/directive quoted the TRO in full;

instructed all pilots to “resume their normal. working

schedule” (as specifically directed by the TRO) and. to

“otherwise comply” with the TRO; and stated that the APA

and its officers “do not authorize, ratify or condone any sick-

out or slow down or violation” of the TRO. R. 157-58.

By 2:00 p.m. on February 11, the full notice was posted on all

national and local APA web sites, recorded by LaVoy on the

APA hotline, and sent via e-mail to all the pilots for whom

APA had an e-mail address. R. 150-51.

LaVoy also distributed return-to-work directives to the

APA’s national and local officers and committee members

instructing them to: comply with the TRO; inform all

members of the TRO’s issuance and distribute copies of the

TRO to each member; instruct all members to resume their

normal working schedule and otherwise comply with the

TRO; advise all members that the TRO prohibits any sick-out

or slowdown; and to post the TRO on all bulletin boards and

local APA web sites. APA also issued a written script for

volunteer pilots who were staffing the union’s phone watch,

which consisted of similar instructions. R. 152-55

D. The Show Cause Motion and Order. Also on February

11—some 24 hours prior to the time set in the TRO for APA

to report its compliance efforts to the court—American filed a

motion for an order to show cause why APA, LaVoy,

Mayhew, and the other defendants should not be held in

contempt. x.

The motion stated in the most general terms that: (1) the

number of pilots on the sick list was greater at 10:51 a.m. on

February 11 than the number on the list at 5:04 p.m. on

February 10; (2) the February 10 “hotline issued by APA by

telephone and internet is not in compliance with the Court’s

order,” and (3) “the APA and the individual named

defendants have not taken all reasonable steps in their power

to prevent continuation of the pilot sick-out against

Ui Ness

6

_ American.” R. 119-120. The attached declarations and

memorandum basically tracked rather than elaborated on the

motion’s contempt allegations. R. 121-26, 135. a

The District Court immediately signed the proposed order

to show cause that American submitted with its motion. R.

a 130. The order required petitioners to file “an answer

specifically admitting, denying, or responding to the Motion

for Contempt” by 9 a.m. February 12 and to appear and

defend the contempt charge by 10 a.m. February 12. Jd. The

order did not elaborate on the contempt allegations. APA’s

counsel received service of American’s motion, the

supporting declarations and memorandum, and the signed

show cause order together at 5:00 p.m., February 11. R. 140.

E. The February 12 Contempt Hearing. At 9:00 a.m. on

February 12, APA, LaVoy, and Mayhew filed an answer and

a motion to dissolve the order to show cause, both of which

maintained that: (1) the February 10 alert did not, on its face,

violate the TRO; (2) as of the evening of February 10, the

defendants had not yet had adequate time to comply fully

with the TRO; (3) compliance was effectuated by the full

TRO notice/return-to-work directive issued on February 11;

and (4) “[t]o conduct a contempt adjudication of defendants

in the manner prescribed denies defendants due process of

law, including ... adequate notice, an opportunity to appear,” —

and an “opportunity to prepare a defense.” R. 140-41.

At 10:00 a.m. on February 12, the District Court convened

the contempt hearing. The only defendants in attendance

were those who were already in the Dallas-Fort Worth area—

LaVoy, Mayhew, APA Secretary-Treasurer Morgan, and

several members of APA’s negotiating committee. Tr. (Feb.

12) 5.

At the outset of the hearing, American made clear that

“we’re not going to ask for anything other than a coercive

fine today. ... that exists day to day until this union gets the

pilots back to work.” Jd. at 11-12. American’s liability case

consisted of the following:

7

e An American vice-president testified that the number

of pilots on the sick list had increased during the first

15% hours after the entry of the FRO—viz., from 4:00

p.m. February 10 to 10:51 a.m. February 11—and that

flight cancellations increased also. Id. at 15.

e American then called defendants LaVoy, Mayhew,

and Morgati as witnesses. The questioning by

American focused principally on the mechanics of the

drafting and dissemination of the February 10

telephone hotline and internet bulletin and on the

APA’s “phone watch” informing pilots who called the

APA headquarters of the issuance of the TRO. /d. at

~35-54, 98-107.

* Finally, American then called Larry Foster and Dennis

Patterson, local APA officials from the union’s

Dallas-Fort Worth “domicile” and questioned them

primarily regarding pre-TRO conduct. Jd. at 127-48,

170-84.

The only questioning that was directed at any points that

became a basis for the District Court’s liability findings was

the following:

e American and the court questioned LaVoy and

Mayhew as to the intent behind the sentence of the

February 10 alert that defined the defendants referred

to in the TRO paragraph excerpted in that message.

LaVoy responded that he believed the sentence was

accurate and factual; Mayhew testified that he wanted

4 “Domicile” is the term used by APA to describe its 10 constituent

local organizational units. Foster and Paterson testified that, prior to the

issuance the TRO, his domicile operated a “phone tree” in which three to

four volunteer pilots called APA members in that domicile and

encouraged the job action. After the TRO issued, Foster instructed his

phone volunteers to cease making these calls; the volunteers were then

given the “phone watch” script and directed to follow it when receiving

calls. Id. at 142-43.

to convey that the union and its officials “were under

the gun.” Id. 47-48; 105-06.

e American asked LaVoy whether a sentence in the

February 10 and February 11 messages stating that

“{t]his legal maneuvering by management does not

bring us any closer to a negotiated settlement” was

intended to encompass the TRO and whether LaVoy

had considered the impact of that sentence; LaVoy

responded that the sentence referred only to

American’s decision to pursue litigation rather than

negotiation and that it was simply an editorial

comment indicating that APA contested the litigation.

Id. at 48-50.

e American questioned LaVoy on whether APA had set

up a national “phone tree” to call APA’s 9,300

members; LaVoy confirmed that no “phone tree” had

been set up because of the volume of incoming calls.

Id. at 32. American inquired whether the APA

directives were phrased in the form of a “personal

message”; LaVoy stated that he believed the APA

hotline—which was recorded in his own voice—and

= written return-to-work directives were personal

messages from the leadership. Jd. at 137, 224-26.

After eliciting this testimony, American closed its case,

repeating its request that the District Court impose “a coer-

cive fine . . . that . . . exist[s] day to day until they have

reached compliance.” Jd. at 234.

At the conclusion of American’s case—given the

generality of the notice provided, the less-than 24-hour period

within which to prepare a defense, and American’s

representation that the hearing concerned prospective

coercive relief liability and not compensatory damages for

past misconduct—petitioners could do nothing more than

recall LaVoy, who testified to the APA’s compliance efforts,

particularly the February 11 TRO notice/return-to-work

directives. Id. at 188-222.

9

The District Court thereupon concluded the hearing and

informed the parties that a ruling would issue the following

morning. /d. at 239.

F. The Contempt Order, Findings of Fact, and Conclusions

of Law. At 10:00 a.m. the next moming (February 13), the

District Court issued its order concluding that APA, LaVoy,

Mayhew were in contempt.” The District Court announced

that its sanction would be an award of compensatory damages

to American, the amount of which wouid be determined at a

subsequent hearing. Foreshadowing the magnitude of its as-

yet undetermined damages finding, the District Court then

_ ordered that the APA, LaVoy, and Mayhew pay into the court

registry $10 million, $10,000, and $5,000 respectively, as a

deposit “toward the compensatory civil contempt fine likely

to be ordered in this case,” which the Court opined was likely

to be “eight figures.” Pet App. 28a. As the District Court

put things in its order, “when all the dust clears, all the assets

5 Throughout the February 12 hearing, the District Court played an

independent and active role as a complaining party, a role having nothing

to do with its role as a disinterested magistrate adjudicating a law case:

e During the hearing, the District Court interjected to relate

anonymous phone calls and messages the court had received from

“irate” air travelers. See, e.g., id. at 79-80, 147 (“[Mly phone is

ringing off the wall back here, and most of the calls that I’m getting

are urging me on, telling me, in essence, they think death by lethal

injection would be too good for the American Airlines pilots.”).

e The District Court questioned LaVoy, Mayhew, Morgan,

Foster, and Patterson on the size of their salaries and the source of

their training, and sua sponte called all of the members of APA's

negotiating committee who were present solely to elicit this same

testimony. Tr. (Feb. 12) 55, 124, 138-39, 161, 163-79, 185. This

“evidence” featured prominently in the Court’s contempt order,

where the court noted that many of the pilots “were taught to fly jets

at taxpayer expense in the U.S. military, which of course enables

them to earn their six figure incomes” and suggested that such pilots

were not justified in seeking “more money . . . merely because

American bought a small airline.” Pet. App. 26a.

10

of the Union, including their strike war chest, will be capable

of being safely stored in the overhead bin of a Piper Cub,”

Pet. App. 27a.

Together with its order, the District Court filed an opinion

stating its findings of fact and conclusions of law. In that

opinion, the District Court interpreted its TRO, in

combination with its comments at the TRO hearing, to mean

that “American Airlines planes needed to start flying again

immediately and that the unlawful sick-out of Union pilots

must immediately cease.” Pet. App. 33a. Thus interpreting

the TRO, the District Court found petitioners in contempt in

that APA had not accomplished that result in the 15¥-hour

period from February 10, 4:00 p.m. (when the TRO issued)

through February 11, 10:50 a.m. (when American inventoried

the sick list).

The District Court’s findings focused almost exclusively

on the APA’s February 10 communication. Pet. App, 41#

34a. But, rather than treating that communication for what it

was—an initial alert prefatory to the full February 11 notice

of the TRO/return-to-work directive that would issue upor

review of the TRO by counsel—the District Court determined

that APA was required to discharge all of its notice of the

TRO and return-to-work directive obligations within 4%

hours of the TRO’s issuance, a requirement nowhere stated in

the TRO itself, and that the February 10 communication was,

on that interpretation of the TRO, seriously incomplete, Pet,

App. 32a-33a. The District Court also focused 6n the

® The District Court, continuing in its aggrieved complaining party

role, opined in its order that the APA had been taken over by a “radical

element . . . determined to fly American Airlines . . . into the side of the

mountain” and suggested that the APA membership should Vote the

national officer defendants out of office for this “fiasco.” The orjer was

also replete with images of organized crime, describing the sick-qy as a

“shakedown,” “extortion,” and “the type of negotiation one usually sees

when doing business with one of the five families in New York,” Pet,

App. 24a-25a.

ll

sentence in the February 10 communication that had defined

the “defendants”—a term otherwise undefined in the TRO

text quoted therein—and found that it “sen[t) the clear

message that individual Union members were not covered.”

Pet, App. 32a.’

On these bases, the District Court concluded that the

February 10 initial alert was “foreseeably ineffective” and

that its ineffectiveness “was not only . . . foreseeable, it was

intended.” Pet. App. 33a.

Having treated APA's first word to its members as its last

word, the District Court, in the two sentences devoted to the

subject of APA's February 11 notice/retum-to-work

directives, concluded that these communications “came too

little too late,” Pet, App, 34a, And finally, that court found

that that petitioners violated the “all reasonable steps”

requirement because APA-—which put out its notice of the

TRO/retum-to- work directive through the internet, telephone

hotline, email, and hard coplese-used a “phone wateh” to

give members who called in notice of the THO and direction

io return to work rather than setting up a “phone bank” to

make outgoing calls to the pilots, Pet, App. 35a.

G. The “Damages” Proceedings. The District Court set

the damages hearing for February 17, without affording APA,

LaVoy, and Mayhew discovery. Petitioners responded by

moving to have the contempt judgment set aside on the

grounds that the adjudication of contempt liability was

“premature” and procedurally defective. R. 215-21. The

District Court denied that motion and announced that the

contempt issue could not be “relitigate{d].” Tr. (Feb. 17) 4.

In the course of the hearing, however, the District Court

’ ‘The District Court then faulted the initial alert for failing to include

the complete text of the ordering paragraphs of the TRO, failing to include

an instruction telling pilots to “resume their normal working schedule”

and to “cease and desist” from engaging in the sick-out. Pet. App. 32a-

33a.

12

permitted American, over objection, to supplement the record

on contempt with five additional exhibits from the pre-TRO

period, /d, at 57,

After American made its damages presentation, the District

Court continued the hearing until April 12. During that

period, the District Court allowed only “limited document

discovery.” /d. at 16-17, 60-61. And, when American moved

to prohibit APA from calling a number of pilot witnesses on

the ground that APA was “asking the Court to relitigate the

issue of contempt,” R. 678, 680, the District Court granted the

motion and disallowed the proposed witnesses, Tr, (April 12)

23; id, at 33 (“I don't want to revisit the contempt”),"

Notwithstanding this ruling, however, the District Court

granted, over APA's objection, American's second motion to

supplement the record of the Pebruary 12 contempt hearing

with materials direetly relating to contempt liability, BR, 774,

702-775, ‘These materials, in addition to those admitted on

rebruary 17, were later relied on by the Distriet Court in ite

June 24 opinion to supplement its February 15 findings on

contempt liability, Pet, App, 52a-53a, 62a-65a, 69a,

H, The Damages Order and Final Opinion, At the close

of the damages hearing on April 15 the District Court

assessed $45,507,280 in damages for the two-day February

10-February 12 period in which the court found the

defendants in contempt. Tr. (April 15) 272.

On June 23, 1999, the District Court stated its judgment on

damages in writing in a heavily revised and augmented

opinion on liability as well as on damages. This lengthy

* The District Court told APA's counsel that “probably all your sick

pilots are going to get a chance to testify” in other lawsuits. Tr. (April 12)

32. Observing that the defendants were defending class actions filed by

passengers, the court opined that APA members may possibly be held

personally liable, “Now, if that’s the case, all these folks are probably

going to get a chance to have their depositions taken. That would

preserve your record, and we can talk about that later.” /d. 32-33.

13 uss

opinion made new contempt findings based on the evidence

that the District Court admitted after the February 12

contempt hearing, evidence which was not tested through

examination in the crucible of a trial. See Pet. App. 52a-53a,

62a-65a, 69a.”

Petitioners timely appealed.

Il, THE COURT OF APPEALS’ DECISION

In their appeal, APA, LaVoy, and Mayhew argued, insofar

as is pertinent here, that the District Court's use of expedited

procedure of a summary nature for determining liability for

compensatory civil contempt damages violated the

contempt/procedural due process principle enunciated in this

Court's decision in Mine Workers v, Bagwell, 512 U.S, 821

(1994), The Court of Appeals rejected that argument in the

following lerma;

Defendants argue that yi were entitled io more

process than they received during the contempt phase of

this proceeding, As primary authority for this assertion,

* Indeed, the June 23 decision reste in large part on a new theory of

liability based upon American's untested post-Pebruary 12 evidence: In

its February 13 contempt findings, the District Court rested its contempt

findings on alleged sins of commission (¢.g., the language used by LaVoy

and Mayhew in the February 10 alert) and on alleged sins of omission

(e.g., APA's failure to implement a “phone bank”), But in its revised

opinion, that court found the APA’s compliance actions inadequate and

contemptuous by finding that the February 10 and February 11

communications were framed in “code language” whose true import was

that the pilots should defy the TRO. Pet. App. 69a. This finding was

based on the untested liability evidence submitted by American after the

close of the February 12 hearing: e-mails sent by pilots and by local APA

“domicile” officials. /d. The District Court, finding that these

communications signaled to members that any APA post-TRO return-to-

work directives should not be taken seriously, also found that APA's

failure affirmatively to disavow such signals by using specific locutions

such as “clear the sick list immediately” was itself an act of contempt. /d.

at 53a, 66a, 72a-73a.

14

the defendants assert that the standard applied in

International Union, UMWA v. Bagwell, 512 U.S. 821

(1994), should apply in the situation sub judice. We

decline the invitation to apply the principle enunciated in

Bagwell to civil contempt situations.

Contempt proceedings are naturally “summary in

form and swift in execution.” Ryals v. United States, 69

F.2d 946, 947 (Sth Cir. 1934). The defendants’

argument that they are entitled to what amounts to a full

trial on the merits of their contempt charge is contrary to

case law. See, e.g., Placid Refining Co. v. Terrebonne

Fuel & Lube, 108 F.3d 609, 613-14 (Sth Cir. 1997)

(holding that civil contempt proceeding that gave “notice

and an opportunity to be heard” was constitutional),

accord Alberti v. Klevenhagen, 46 F.3d 1347, 1359 (Sth

Cir. 1995). [Pet. App. 16a-17a.]

REASONS FOR GRANTING THE WRIT

This case presents in the most pointed fashion the one

fWajor contempt/procedural due process question left open in

this Court’s seminal decision in Mine Workers v. Bagwell,

412 U.S. 821 (1994): The question of the requisite

procedures for hearing and deciding compensatory civil

contempt cases bottomed on allegations of “out-of-court

violations of a complex injunction,” Bagwell, 512 U.S. at

837, viz., the requisite procedures for the class of contempt

cases that are “nominally those of contempt [but] really

i to award damages to the plaintiff’ for past

conduct, Worden v. Searls, 121 U.S. 14, 26 (1887).

The contempt power—particularly when exercised through

expedited procedures of a summary nature—places the

greatest strains on the rule of law and on the judicial branch

as one of the three separate branches of government, each

with delimited powers.

Given that strain and given the inherent human frailties of

any trial judge who is faced with a supposed disobedience or

connas of haviaain tel saad aie Bagwell,

512 U.S. at 831."°

And, given the delicate nature of that balance—as well as

the stakes for the parties, for the trial courts, and for the fair

Indeed, it is the Fifth Circuit’s ill-considered answer to this

question that presents the most compelling case for a well-

considered answer by this Court.

The Court of _ Appeals ruled that compensatory civil

defendants, in contrast to all other civil damages case

defendants, are not entitled to the procedural due process that

attends “‘a full trial on the merits of their contempt charge” —

as provided for in the federal courts by the Federal Rules of

Civil Procedure—but only to the expedited procedures of a

summary nature offered by the “[s]imple,” conclusory notice

—

° This Court's modern contempt precedents progress from the early

the claims of due process. See, ¢.g., Gompers v. Buck's Stove & Range

Co., 221 U.S. 418, 444 (1911) (requiring proof beyond a reasonable doubt

in criminal contempts); Cooke v. United States, 267 U.S. 517, 525

(1925 requiring notice of charges and right to present a defense and have

and assistance of counsel in criminal contempts); Bloom v. Illinois, 391

U.S. 194 (1968) (requiring jury trial for “serious [criminal] contempts”);

and Bagwell, 512 U.S. at 836-37 (holding that fixed, non-compensatory

fines for out-of-court violations of complex injunctions cannot be imposed

absent criminal procedural protections).

16

and the immediate, next-day hearing provided here. Pet.

App. 17a.

In so ruling, the court below “decline[d] the invitation to

apply the principle enunciated in Bagwell to civil contempt

situations,” and instead relied entirely on Court of Appeals

cases that in no way support the proposition that a party may

be found liable for, and sanctioned with, massive

compensatory contempt damages for past conduct absent full

civil due process. Pet. App. 16a.""

"' Ryals v. United States, 69 F.2d 946, 947 (Sth Cir. 1934), is a

museum piece whose obsolescence is proved by Bloom v. Illinois, 391

U.S. 194 (1968). Ryals was a criminal contempt case in which the trial

court summarily adjudged the defendant in contempt for assaulting a court

officer and imprisoned him for one year without a charge, a jury trial,

findings of fact, or a judgment of guilt. The Court of Appeals reversed,

requiring “a formal charge, a hearing before the court, and a formal

judgment of guilt,” but not a jury trial. Under Bloom, an alleged criminal

contempt and a punishment of one year’s imprisonment is not subject to

“summary . . . and swift” adjudication at all but to a full trial by jury.

Aside from drawing on Ryals for its general—and entirely

anachronistic—language, the Court of Appeals cited three cases to justify

eschewing analysis under this Court's “Bagwell principle,” viz., that due

process in the context of the contempt power requires a “balance”

between “the competing concerns of necessity and potential arbitrariness,”

512 U.S. at 832:

e Placid Refining Co. v. Terrebonne Fuel & Lube, 108 F.3d 609,

613-14 (Sth Cir. 1997), was cited for the proposition that a “civil

contempt proceeding that gave ‘notice and an opportunity tobe

heard’ was constitutional.” Pet. App. 17a. In fact, that case held that

a compensatory civil sanction of attorney's fees and costs, entered

“falfter extensive discovery and a hearing on the merits,” id. at 612,

was constitutional.

e Alberti v. Klevenhagen, 46 F.3d 1347, 1359 (Sth Cir. 1995),

cited as in “accord” with Placid Refining, was a coercive civil

contempt case, which under the Bagwell principle eschewed by the

Court of Appeals, is a class of cases entirely distinct from

compensatory civil contempt cases. See infra pp. 24-26.

17

The decision below could not be more wrong. in its

holding. The proposition that a compensatory civil contempt

defendant facing a complex legal claim that rests on the proof

of crucial disputable facts as to events that have occurred in

the past and that entails millions of dollars of potential

liability—here, $45,500,000—is not entitled to the basic

procedural protections accorded all other civil-damages case

defendants cannot be squared with the “principle [of]

Bagwell” and defies every due process precept.

Nor could the decision be more wrong in its method.

Simply stated, the Courts of Appeals are not entitled to decide

legal questions by cavalierly dismissing the principles

enunciated in this Court’s decisions and by placing their

reliance on inapposite lower court precedents. That is

particularly so where, as here, the decision breaks faith with

this Court’s contempt/due process precepts and with the

general understanding that in the Federal Courts, civil

contempt liability proceedings are to be adjudicated in

accordance with the due process benchmark provided by the

Federal Rules of Civil Procedure. See, e.g., Rogers v.

Webster, 776 F.2d 607, 610 (6th Cir. 1985) (“Civil contempt

is a civil proceeding governed by the Federal Rules of Civil

Procedure.”).

And, it is difficult to see how a post-Bagwell contempt/due

process decision could be more far-reaching in its

mischievous potential. The Virginia courts’ aggressive

e United States v. Powers, 629 F.2d 619 (9th Cir. 1980) (cited for

its “simple notice” statement) is a non-summary criminal-contempt

case involving a “discrete readily ascertainable” fact (a witness's

failure to appear), and again under the Bagwell principle, is

inapposite. Moreover, the Powers court went on to say: notice must

“inform the contemnor of the nature of the charge and enable the

contemnor to prepare a defense,” that a “reasonable” notice period

varies with the circumstances, and that a five-day notice period

(borrowed from Criminal Rule 45(d) and Civil Rule 6(d)) should

apply absent “a compelling need to shorten the time.” /d. at 625.

18

attempt in Bagwell to expand coercive civil contempt made it

all but certain that trial judges could—and thus would—hold

parties in contempt and impose monetary penalties through

expedited procedures of a summary nature, thereby

dispensing with any need to invoke criminal contempt with

its attendant procedural due process complexities and its due

process protections against abuse of the contempt power. The

Fifth Circuit’s aggressive expansion of compensatory civil

-contempt is of. the same order: The Court of Appeals’

decision opens the widest alternate leeway for the very abuse

of the contempt power that Bagwell’s criminal contempt/due

process holding is intended to preclude: adjudication by the

judge who has issued a complex injunction—outside the

institutionalized procedures for the even-handed admin-

istration of the law—of claims of out-of-court disobedience

of that injunction with the end in view of imposing substantial

monetary liability on the defendant.

As this case shows, the costs of opening that leeway are

great. We are, of course, most mindful of the multimillion

dollar judgment in this case issued without the process that is

deemed due to defendants facing large damages claims—and

far smaller ones. But, given the nature of the contempt power

and its potential for abuse, the harm worked by the decision

below to the interest in ev suring even-handed use of judicial

power and to the federal court civil justice system—while

immeasurable—is far greater still. i

In schematic terms, the multimillion dollar retrospective

compensatory damages case here and the multimillion dollar

retrospective fine case in Bagwell were means of adjudicating

indirect contempts ‘through expedited proceedings of a

summary nature. The Virginia courts “levied contempt fines

for widespread, ongoing, out-of-court violations of a complex

injunction” without observing the procedures that due process

requires in ordinary criminal proceedings. So here, the

District Court awarded compensatory damages for such “out-

_—_———— rrr

19

of-court violations of a complex injunction” without —

observing the procedures that due process requires in ordinary

civil proceedings.

The results in the Virginia courts and in the courts below

here were predictably similar—a judicial finding of liability

and the consequent imposition of a multimillion dollar

judgment. And, those results are contrary to the genius of the

judicial system as a justice system and to this Court’s

contempt/due process jurisprudence as most recently

elaborated in Bagwell.

In sum, all of the considerations that called for a grant of

certiorari in Bagwell—together with the added considerations

of safeguarding the vitality and integrity of the Court’s

decision in that case and of assuring the fair and even-hand

administration of the law by the Federal Courts—call for a

grant of certiorari in this case.

Il

The Bagwell litigation was, of course, focused by an

ongoing dispute as to whether scheduled non-compensatory

fines for violations of a complex injunction were properly

characterized as forward-looking, coercive civil sanctions—

requiring only expedited proceedings of a summary nature—

or as retrospective sanctions for “ ‘completed act[s] of

disobedience,’ such that the contemnor cannot avoid or

abbreviate the [punishment] through later compliance”—

requiring full criminal procedure. 512 U.S. at 828-29

(quoting Gompers, 221 U.S. at 443).

Consequently, the Bagwell opinion treats with the requisite

procedures in compensatory civil contempt cases only in

_ passing and in the most general terms.'? And, the Bagwell

See $12 U.S. at 838 (“Our holding [that non-compensatory fines

cannot be imposed for out-of-court disobedience of complex injunctions

absent a jury trial and other criminal procedural protections) leaves

20

holding—that such retrospective non-compensatory sanctions

can not be imposed absent full criminal due process—does

not in terms determine what process is due on the civil side

where a party faces allegations of “out-of court disobedience

to a complex injunction” and where the remedy meted out is

not a forward-looking coercive sanction but rather a non-

purgable retrospective award of compensatory damages for

past acts of alleged disobedience.

But, it is our submission that the Bagwell analysis, and the

Bagwell principle crystallized by that analysis, do dictate the

answer to the contempt/due process question here as well as

to the question posed in Bagwell itself. The very analysis and

the very principle that led this Court to conclude that the non-

compensatory $52,000,000 sanctions in Bagwell could not,

consistent with due process, be imposed absent full criminal

due process also resolutely counsel that the $45,500,000

compensatory contempt sanction imposed here could not,

consistent with due process, be imposed without full civil due

process in the form of the “full trial on the merits” that the

Court of Appeals held was not necessary here.

(1) Bagwell addressed “the ultimate question” posed by

any contempt/due process case: “what procedural protections

are due before any particular contempt penalty can be

imposed.” 512 U.S. at 830-31. This “ultimate question,” the

Court explained, requires careful attention both to the purpose

of the contempt power and to its inherent dangers. In this

regard, the Court observed first that:

[t]he traditional justification for the relative breadth of

the contempt power has been necessity: Courts

independently must be vested with “power to impose

silence, respect, and decorum, in their presence, and

submission to their lawful mandates, and ... to preserve

themselves and their officers from the approach and

unaltered the longstanding authority of judges . . . to enter broad

compensatory awards for all contempts through civil proceedings.").

—_~

21

insults of pollution.” Anderson v. Dunn, 6 Wheat. 204,

227 (1821). [512 U.S. at 831.]

And, the Court then added that:

the contempt power also uniquely is “liable to abuse.”

Bloom, 391 U.S., at 202, quoting Ex parte Terry, 128

U.S. 289, 313 (1888). Unlike most areas of law, where a

vulnerable and human qualities of a judge's

temperament,” Bloom, supra, at 202, and its fusion of

legislative, executive, and judicial powers “summons

forth . . . the prospect of ‘the most tyrannical

licentiousness.’” Young v. United States ex rel. Vuitton,

481 U.S. 787, 822 (1987) (SCALIA, J., concurring in

judgment), quoting Anderson, 6 Wheat., at 228. [512

US. at 831.]

All this being so, the Court’s “jurisprudence in the

contempt area has attempted to balance the competing

concerns of necessity and potential arbitrariness by allowing a

relatively unencumbered contempt power when its exercise is

most essential, and requiring progressively greater procedural

protections when other considerations come into play.” 512

US. at 832.

Having set forth the considerations that must be weighed in

determining the appropriate level of procedural due process,

the Bagwell Court put the matter in concrete terms by stating

the paradigm case for necessity and the paradigm case for the

most exacting procedures:

“The necessity justification for the contempt authority is at

its pinnacle, of course, where contumacious conduct threatens

a court’s immediate ability to conduct its proceedings, such as

where a witness refuses to testify, or a party disrupts the

/

22

court.” 512 U.S. at 832-33. This judicial “power of self-

defense”—permitting the immediate summary adjudication of

such “direct” contempts provided that the court does not mete

out “serious” punishment—has “been tolerated” because “of

the court’s substantial interest in rapidly coercing compliance

and restoring order, and because the contempt’s occurrence

before the court reduces the need for extensive factfinding

and the likelihood of an erroneous deprivation.” Id.

But “[s]ummary adjudication becomes less justifiable once

a court leaves the realm of immediately sanctioned, petty

direct contempts.” 512 U.S. at 832. And, “further procedural

protections are afforded for contempts occurring out of court,

where the considerations justifying expedited procedures do_

not pertain.” Jd. at 833. “For a discrete category of indirect

contempts”—those “involving out-of court disobedience to

complex injunctions,” id., and the imposition of “serious

criminal penalties” including “determinate, retrospective

criminal fines which [the defendant party] had no opportunity

to purge once imposed,” id. at 837—concerns of potential

arbitrariness are preeminent. Because such cases “often

require elaborate and reliable fact finding,” and because the

alleged contempts themselves “do not obstruct the court’s

ability to adjudicate the proceedings before it,” this Court

observed, “the risk of erroneous deprivation from the lack of

a neutral factfinder may be substantial.” Jd. at 834.

Hence, Bagwell holds that such contempts require the full

protections normally incident to the criminal process: “Under

these circumstances, criminal procedural protections ... are

both necessary and appropriate to protect the due process

rights of parties and prevent the arbitrary exercise of judicial

power.” 512 U.S. at 834. “Where, as here, ‘a serious

contempt is at issue, considerations of efficiency must give

way to the more fundamental interest of ensuring the even-

handed exercise of judicial power.’” Jd. at 839 (quoting

Bloom, 391 U.S. at 209).

For this very reason, compensatory civil contempt in no

way implicates the countervailing judicial “necessity”

concerns that, as Bagwell makes clear, provide the sole

justification for resort to expedited process of a summary

nature and for departing from the due process guarantees that

attend ordinary civil (or ordinary criminal) actions.

It is equally to the point that the other Bagwell

considerations—those that go to the need for “elaborate and

reliable factfinding”—also forcefully counsel against the kind

of expedited process of a summary nature by which this

compensatory civil contempt case was dispatched.

First, the proceedings here clearly involve alleged “out-of-

court disobedience of a complex injunction” within the

intendment of Bagwell. The TRO’s terms required the APA

and its officers to issue their notice and return-to-work

directives through manifold media in order to reach its 9,300

pilot members scattered throughout the country, and to

otherwise use “all reasonable steps within their power” to

effectuate an end to the sick-out. Moreover, as the District

Court read the TRO, it required that “American Airlines

planes . . . start flying again immediately” and required too

'3 See also Doug Rendleman, “Compensatory Contempt: Plaintiff's

Remedy When a Defendant Violates an Injunction,” 1980 U. Ill. L. Forum

971 (1980) (“Judges use criminal and compensatory contempt when it is

too late to coerce the defendant into the desired mode of conduct.”).

24

that the sick-out “must immediately cease.” Pet. App. 32a, —

33a, 50a. It should be needless to say that such commands

raise substantial issues of-compliance, of ability to comply,

and of agency. This case is at the other extreme from those

“involving discrete, readily ascertainable acts, such as turning

over a key or payment of a judgment,” in which “the need for

extensive, impartial factfinding is less pressing.” Bagwell,

512 U.S. at 833.

Second, and of equal moment, this case points up the

unique dangers of the contempt power, and bears out most

vividly this Court’s admonition that “contumacy”—whether

real or perceived—“often strikes at the most vulnerable and

human qualities of a judge’s temperament.” 512 U.S. at 831

(quoting Bloom, 391 U.S. at 202). The District Court's

assertion of the role of an active—and actively aggrieved—

complaining party, see supra pp. 9-10, proves again the

concern that “[w]hen the responsibilities of lawmaker,

prosecutor, judge, jury and disciplinarian are thrust upon a

judge he is obviously incapable of holding the scales of

justice perfectly fair and true .... He truly becomes the

judge of his own cause.” Green v. United States, 356 U.S.

165, 199 (1958) (Black, J., dissenting).'*

In sum, in compensatory civil contempt proceedings such

as the one at issue here, there is no judicial necessity that

permits departure from the incidents of civil due process

applicable in all civil damages proceedings. And, there is

every potential for unfairness to alleged contemnors from

using the precipitate process utilized by the District Court

here to determine the complex legal and factual issues as to

compliance with a court order and as to damages resulting

'4 Green’s holding that a jury trial is not available in criminal contempt

was overruled by the Court ten years later in Bloom, 391 U.S, at 199, a

decision that vindicated Justice Black’s Green dissent.

25

consequences can weigh inthe balance." (ws

(3) To put the foregoing in proper perspective, we hasten

to add that civil contempt is not a unitary category and that

expedited procedures of a summary nature are proper in

coercive civil contempt cases. Whereas compensatory civil

contempt provides retrospective relief, “[cJoercive sanctions,

in contrast, look to the future and are designed to aid the

plaintiff by bringing a defiant party into compliance with the

court order.” Latrobe Steel, 545 F.2d at 1344. In such

proceedings, the “necessity” side of the balance tips heavily

in favor of abbreviated process to meet the exigency of

continuing or threatened court-order disobedience and to

secure prompt obedience to the order.

And, on the other side of the balance, “potential

arbitrariness” is alleviated by the unique characteristics of the

coercive civil contempt regime. That regime entails a three-

stage process, consisting first of the issuance of the

underlying order (such as the TRO here); second, an

expedited hearing leading to a “conditional order finding ...

contempt” and threatening conditional sanctions for the

defendant's failure to carry out the court's specific commands

as spelled out in the contempt order; and third, imposition of

the threatened penalty, after due notice and a hearing, if the

party fails to comply. See, e.g., NLRB v. Blevins Popcorn

Co., 659 F.2d 1173, 1184 (D.C. Cir. 1981).

The defining feature—and the saving grace—of coercive

civil contempt regime is that the initial finding of contempt is

both conditional and prospective, allowing the defendant an

opportunity to purge through compliance and avoid the

'S And, as the D.C, Circuit noted decades before Bagwell, “Certainly

the history of contempt litigation, especially in regard to labor disputes,

prescribes extreme care and insistence on the full indicia of due process in

contempt cases.” Brotherhood of Locomotive Firemen & Enginemen v.

Bangor & Aroostook R.R.,, 980 F.2d $70, 582 (D.C, Cir, 1967),

26

sanction. See Bagwell, 512 U.S. at 828-29; Shillitani v.

United States, 384 U.S. 364, 366-69 (1966). The danger to

alleged contemnors and to the integrity of the civil justice

system inhering in the summary part of this procedure is thus

mitigated by the provisional nature of the contempt finding,

the additional specification of the actions required to satisfy

the underlying order, and the opportunity to “purge” the

contempt.

Such coercive civil contempt cases stand on an altogether

different footing from the instant compensatory civil

contempt case, where the objective of the proceeding is not to

secure compliance with a court order under the exigent

circumstances of a continuing violation, but rather to provide

a retrospective damages remedy for past disobedience. There

is, therefore, no judicial “necessity” consideration that

justifies the truncated process that the District Court held

here.

(4) In the Federal Courts, the benchmark for full civil due

process is provided by the Federal Rules of Civil Procedure.

As this Court recently pointed out, the Federal Rules,

particularly those ensuring “a proper opportunity to respond”

to a claim, “are designed to further the due process of law that

the Constitution guarantees.” Nelson v. Adams USA, 120 S.

Ct. 1579, 1584 (2000).

Because the Federal Rules of Civil Procedure embody the

basic due process requirements for adjudicating civil cases in

the Federal Courts and do so in a way that strikes a balance

between the need for fair and reliable fact finding on the one

hand and reasonable promptness in the resolution of civil

disputes on the other, there are compelling reasons to follow

those Rules in this context, and no reason not to. And, there

can be no question in this case that neither the Federal Rules

nor due process principles “countenance such swift passage

from pleading to judgment in the pleader'’s favor,” Nelson,

120 S.Ct, at 1584, as occurred here,

APA, LaVoy, and Mayhew. in the this case: Pye

notice of the nature and particulars of the claim to afford a

meaningful opportunity to respond, (2) sufficient time to

prepare a defense to a claim, and (3) a reasonable opportunity

for discovery.

The Federal Rules, first, contemplate that a party be

apprised of the nature and particulars of a claim for relief

standard of Rule 7(b)(1) (requiring a party to “state with

particularity the grounds” for the relief sought) or the

pleading standard of Rule 8(a)(2) (requiring “a short and

plain statement of the claim showing that the pleader is

entitled to relief”), that notice must at least permit the party

against who the claim is made to prepare an adequate

defense, See Conley v. Gibson, 355 U.S. 41, 58 (1957)

(Federal rules require “fair notice of what the plaintiff's claim

is and the grounds upon which it rests.”).

The Federal Rules, furthermore, contemplate “time and

opportunity to respond to” a claim. Nelson, 120 S. Ct. at

1584. In a civil case for damages allegedly caused by the

defendant’s completed acts, the Federal Rules set up a

framework by which the litigation progresses toward a trial

on the merits—beginning with an answer, then discovery, and

then pretrial proceedings—and do not provide for a simple

general notice on day one and an immediate dispositive

liability hearing on day two.

By dispensing entirely with these minimum due process

requisites—on no basis other than its misunderstanding that

the civil contempt power in all its manifestations is “naturally

‘summary in form and swift in execution’’—the Fifth

Circuit’s decision is incompatible with the fair and even-

)

|

|

28

handed administration of the law in a way that calls for this

Court’s correction.'®

CONCLUSION

For the above stated reasons, this petition for a writ of

certiorari to the United States Court of Appeals for the Fifth

Circuit should be granted.

Respectfully Submitted,

EDGAR N. JAMES

JAMES & HOFFMAN, P.C.

1146 19th Street, N.W.

Washington, D.C. 20036

(202) 496-0500

ROBERT M. WEINBERG

(Counsel of Record)

LAURENCE GOLD

BREDHOFF & KAISER, P.L.L.C.

805 15th Street N.W., Suite 1000

Washington, D.C. 20005

(202) 842-2600

'6 In the interest of completeness, and so that we neither overstate nor

understate the ramifications of the major proposition we have argued—

that compensatory civil contempt cases are in the class of civil damages

cases and subject to the due process regime that governs that class of

cases—we note that this proposition suggests that, in the Federal Courts,

such cases are, by reason of the Seventh Amendment, subject to the

protection of a jury trial. That suggestion depends not only on the

foregoing proposition being judged to be correct but also on the

1 of characterizing, for Seventh Amendment purposes, actions

different in kind from those known to Eighteenth Century England. See,

e.g., City of Monterey v. Del Monte Dunes, Lid., 119 S.Ct. 1624 (1999);

Teamsters v. Terry, 494 U.S. 558 (1990). Since the Court has not passed

on the correctness of our submission; since the courts below rejected our

submission without exploring a jury trial issue and that being so, no jury

trial issue has been explored in the courts below; and since the issue has

its own complexities, we merely put this place marker on it for the

purpose of the proceedings in this Court.

Text of the District Court February 10, 1999

Temporary Restraining Order.

IT IS ORDERED, that the Defendants, and each of them,

their agents, successors, deputies, servants and employees,

and all persons acting by, in concert with, through or under

them, or by and through their orders, are hereby temporarily

restrained pending a hearing on the preliminary injunction in

this matter:

(a) From calling, permitting, instigating, authorizing,

encouraging, participating in, approving or continuing any

staal ahh: Aenaiiameiiaill ain feelidiines iene

not limited to any strike, work stoppage, sick-out, slowdown

or other concerted refusals to fly over a minor dispute or

otherwise in violation of the RLA, 45 U.S.C., §§ 151-188

(1988).

AND IT IS FURTHER ORDERED:

(b) That the said Defendants and said other persons acting

in concert with them shall take all reasonable steps within

their power to prevent the aforesaid actions, and to refrain

from continuing the aforesaid actions if commenced.

(c) That the said Defendants shall instruct all pilots to

resume their normal working schedule, and provide Plaintiff a

copy of all such instructions.

(d) That APA and the individually named Defendants

notify, by the most expeditious means possible, all APA-

represented pilots employed by American of the issuance,

contents and meaning of this Temporary Restraining Order,

and produce a copy of all such messages to Plaintiff.

(ce) That the notice described in (d) above include a

directive from APA to those pilots who are engaging in a

sick-out or other concerted refusals to fly to cease and desist

1 eae Coe,

30

all such activity and to cease and desist all exhortations or

communications encouraging same.

(f) That APA and the individually named Defendants post

the notice described in (d) above to APA's Internet web site,

and provide a copy of the notice to the Plaintiff.

(g) That APA and the individually named Defendants

include the contents of the ordering paragraphs of this Order

on all recorded telephone hotlines under control of

Defendants or any of them, until such time as the Court has

acted on Plaintiffs Motion for a Preliminary Injunction, and

provide a copy of all messages to the Plaintiff.

(h) That APA and the individually named Defendants

report by 12:00 noon on February 12, 1999, by swom

affidavit, the methods used to effect the notice described in

(d) above to all APA-represented pilots.

(i) All copies required to be furnished to the Plaintiff by

Defendants under this Order shall also be contemporaneously

furnished to the Court.