Petition for Writ of Certiorari — Spellacy v. Air Line Pilots Association-International

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Supreme Court, U.S

FILED

981113 janii

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1998

. —

EDWARD J. SPELLACY, JR., et a!.,

Tanke (WO

Petitioners

AIRLINE PILOTS ASSOCIATION-INTERNATIONAL, et al.,

Do» " ,

Respondents

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

€ =

PETITION FOR WRIT OF CERTIORARI

2 _

Mark R. Kravitz

Counsel of Record

DANIEL J. KLat

WicciIn & DANA

One Century Tower

Post Office Box 1832

New Haven, CT 06508

(203) 498-4400

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Do the Seventh Amendment and Rule 50 of the

Federal Rules of Civil Procedure permit a court, when

ruling on a motion for judgment as a matter of law, to

weigh the evidence of the parties or do they instead

restrict the court to considering only the evidence that is

favorable to the nonmovant and any unfavorable evi-

dence that the jury was required to believe?

2. Did both the district court and the court of

appeals violate Rule 20(a) of the Federal Rules of Civil

Procedure by treating each of the 82 petitioners as a

single group, rather than as distinct individuals whose

claims each had to be evaluated on their own particular

merits?

LIST OF PARTIES AND AFFILIATES

Edward J. Spellacy, Jr.; Stewart W. Beckett, Jr.; Ray-

mond H. Albers, Il; Gordon N. Almquist; Gary K. Arm-

strong; Donald G. Arneson; James Bailey; W. Schafer

Bean; William Harvey Benefield; Tad H. Bingham; Vid-

mantas K. Bliumfeldas; Rudolph Brabenec; Robert E.

Brickey; Michael D. Burke; Dallas E. Butler; James R.

Byrne; James Canitz; Gerald W. Cassidy; Robert C. Cas-

sube; Thomas Ceranic; David M. Criley; John W. Cun-

ningham; Donald E. Dale, Jr.; Michael J. Dunn; Thomas G.

Ebbert; Gerald L. Ellison; Jerome P. Fox; Robert K. Frank;

Howell J. Gannon; Benjamin F. Greer; Robert L. Harrell;

Albert G. Harrison; William H. Hart; Reginald W. Havill;

Robert H. Hays; David K. Holland; Thomas L. Hurd;

David E. Jones; Austin L. Joyner; Terrence J. Kane; David

A. Klau; Donald K. Law; Byron C. Lewin; Manuel J.

Lewis; Keith J. Mackey; John A. Marshall; Kenneth G.

McAdams; Robert C. McGrory; Jan A. Menke; James W.

Miller; John R. Neff; Ernest J. Neuwald; Thomas M.

O’Dell; Terry W. Pope; Michael E. Ranslam; Frank C. Rice,

Richard D. Robbins; Jack J. Rogers; Stanley A. Roitz; K.

David Savage; Carl E. Schmeusser; George H. Schum

acher; Conrad E. Smith; Dorsey L. Spaulding; Michael N.

Stafford; William A. Stevens; Timothy G. Sullivan; M. Joel

Thompson; John W. Tiger; Constantine G.Vlahakis; J.

Robert Wardin; John S. Wentworth; John L. White; John

N. Zoller; Donato D’Angelico; Keith Erlewine; Alto J.

Furlong, Jr.; Kenneth Lemming; William A. Pitsker; Harry

Shepard; Bill M. Shuster and Frank Z. White.

There are no corporate petitioners.

111

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................ ‘ ;

LIST OF PARTIES AND AFFILIATES......... na i

TABLE OF AUTHORITIES....................... . iv

OPINIONS BELOW...... ee er

JURISDICTION ...... eR W NSO eho 68 60-¥.05 6000 0:2 | l

STATUTORY PROVISIONS INVOLVED............

el wevusecas ON

REASONS FOR GRANTING THE WRIT ....... i or

I. THE SECOND CIRCUIT’S LEGAL STANDARD

FOR REVIEWING A DISTRICT COURT'S

GRANT OF JUDGMENT AS A MATTER OF

LAW VIOLATES RULE 50 AND THE SEVENTH

eho bx kau <o0 0% 00 Keepnccwa. 19

A. The Court of Appeals Improperly Weighed

the Evidence and Made Credibility Deter-

EGG UNG has 556M ews oes e600 so edhe 19

B. A Longstanding Conflict Exists Among the

Circuit Courts Regarding the Proper Legal

Standard for Reviewing the Grant of Judg-

ment as a Matter of Law.................. 24

ll. THE COURT OF APPEALS VIOLATED THE

SEVENTH AMENDMENT AND RULES 50 AND

20(a) IN CONCLUDING THAT PETITIONERS

HAD FAILED TO ESTABLISH CAUSATION.... 25

Ee 28

TABLE OF AUTHORITIES

Page

CASES

Air Line Pilots Ass‘n, Int'l v. O'Neill, 499 U.S. 65

(UPPED 8 ccereeere tues neeeeseeesscnderasEhauwteevie ss 2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .... 21

Day v. Amax, Inc., 701 F.2d 1258 (8th Cir. 1982) ..17, 24

Galloway v. U.S., 319 U.S. 372 (1943) ............ 17

Gasperini v. Center for Humanities, Inc., 518 U.S. 415

RN 6.565 4a Ges ek eek Feeee eee Re eEee eee eee 21

Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990)..... 21

Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th

Cir.) cert. denied, 118 S. Ct. 336 (1997)......... 17, 24

Schwimmer v. Sony Corp. of America, 459 U.S. 1007

| PPC eee eer Peer er err ee. Pere re Tey ere 18

Simpson v. Skelly Oil Co., 371 F.2d 563 (8th Cir.

gd EEC LUTTE ETE T EL OEE EP COO ery roe re 24

St. Paul Fire & Marine Ins. Co. v. Vaughn, 779 F.2d

Se SOs CI Bi os wvencebeeresecvences 17, 2. &

Vaca v. Sipes, 386 U.S. 171 (1966).......... 27

Webb v. Illinois, 352 U.S. 512 (1957) . 22

Wilkerson v. McCarthy, 336 U.S. 53 (1949) a

STATUTES AND RULES

SE Rees Oe BEN so eeceesetenses ere Serer er .4

yt ee | rr aera .

rea. BR. Civ. F AMG) ..ncccscces mete « SF

TABLE OF AUTHORITIES

Continued

Fed. R. Civ. P.

MISCELLANEO

Edward H. Cooper, Direction

A Compass for Federal Cou

903 (1971).

for Directed Verdicts

rts, 55 Minn. L.

7 Wright, Miller & Kane, Federal Practice «

cedure: Civil 2d § 1652 (1986)

Wright and Miller, Federal Practice

cedure: Civil 2d (1995)

Page

. passim

18, 21

93 «94 «296

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully request that a writ of cer

tiorari issue to review the judgment of the United States

Court of Appeals for the Second Circuit

OPINIONS BELOW

[he opinion of the United States Court of Appeals for

the Second Circuit is reported at 156 F.3d 120. It is

reprinted in the appendix to this petition (“Pet App.”) at

A1-22

JURISDICTION

The court of appeals entered judgment on August 12

1998. Petitioners thereupon filed a Petition for Rehearing

and Suggestion for Rehearing En Banc, which the court

denied on October 13, 1998. This Court has jurisdiction to

review the court of appeals’ judgment under 28 U.S.C

§ 1254.

STATUTORY PROVISIONS INVOLVED

This case involves the interpretation of Rules 20(a

and 50 of the Federal Rule of Civil] Procedure. The rules

are reproduced in the attached appendix.

STATEMENT

At bottom, this case is about union officials who

placed their own self-interest in job and career preserva-

tion above the airline pilots whom, under federal labor

law, they were obligated to represent fairly, honestly and

in good faith. See Air Line Pilots Ass'n, Int'l v, O'Neill, 499

U.S. 65, 71 (1991). It is also about 11 jurors who, through

their verdicts and in the exercise of their constitutional

duties, held those union Officials accountable for their

misdeeds.

I. Petitioners submit the following detailed factual

statement to show how the court of appeals’ use of an

incorrect legal standard for reviewing a grant of judg-

ment as a matter of law under Rule 50 directly affected

the court’s decision to Overturn the jury’s unanimous

verdicts in favor of petitioners. !

A. Petitioners are 82 Pan American World Airways

(“Pan Am”) Pilots who lost their jobs, and in many cases

their careers, when Pan Am closed its doors on December

4, 1991. As a group, petitioners were among the most

senior pilots at Pan Am. While employed at Pan Am, the

pilots were represented by respondent Airline Pilots

Association (“ALPA”), a labor organization that was the

duly authorized and exclusive collective bargaining rep-

resentative for Pan Am pilots. Pet. App. A2. ALPA’s

coordinating council for pilots at Pan Am was the Pan

Am Master Executive Council (“MEC”). Id. The individ-

ual respondents were officers and elected representatives

of the MEC. Id. at A2-3.

The rights and obligations of petitioners and their

fellow Pan Am pilots were set forth in great detail in the

Pilots Working Agreement (“PWA”), the collective bar-

gaining agreement between Pan Am and its pilots. Id. at

A4. The PWA covered all aspects of the working lives of

pilots at Pan Am. Most important, the PWA explicitly

provided that pilots’ entitlements and obligations would

be determined and allocated according to a pilot’s date of

hire, i.e., his seniority.2 As respondent Richard Burke

conceded at trial, “Everything that we do as a pilot is

predicated on our seniority number at our company.” III

JA 80 at A251.

Consistent with this overarching principle, the PWA

established a seniority-based methodology by which,

among other things, all aircraft assignments were deter-

mined. Pet. App. A4. Thus, whenever Pan Am projected a

major change or “shift” in its flight operations, such as

when routes and flight schedules were changed, or when

2 Specifically, section 3-A of the PWA provided in pertinent

part: “Seniority shall govern all pilots in case of promotion or

demotion, their retention in case of reduction in force, their

assignment or reassignment due to expansion or reduction in

force, their choice of vacancies, placement or replacements. .. .

[This section] shall apply except where specifically excepted in the

[PWA].” Pet. App. A12 (emphasis added).

iircraft and routes were sold or purchased, Pan Am

innounced the change to the pilots and issued a “prof-

ter.” Id. The flight positions created as a result of the shift

in flying were posted in the proffer and pilots had the

opportunity to “bid” for those positions and oppor-

tunities. Id. at A5. Pan Am then issued “awards” to the

pilots, deciding among the bidders based on their relative

ystem seniority and trained them as necessary. Id.

Beginning in the late 1960’s, Pan Am began to experi-

ence financial difficulties. Id. at A3. To survive, Pan Am

began to sell off assets and routes, but these sales only

exacerbated Pan Am’s difficulties and in January 1991,

van Am filed for reorganization under the bankruptcy

ws. Id. At no time, however, did Pan Am seek to reject

the PWA, as it could have under § 1113 of the Bankruptcy

Code. I JA 417

While in reorganization, Pan Am continued to search

‘or potential buyers of its remaining assets. Pet. App. A3

in early July 1991, the MEC informed Pan Am’s pilots

that Delta Airlines (“Delta”) had agreed, as part of an

\sset Purchase Agreement (“APA”), to purchase Pan

\m’s North Atlantic routes and its Northeast corridor

shuttle” operation. Id. Under the APA, Pan Am agreed

to sell Delta its entire fleet of 21 Airbus 310 (“A-310”)

uircraft, and up to 19 Boeing 727 (“B-727”) aircraft. Id

Delta also agreed that it would fund a restructured, albeit

smaller, Pan Am that would operate out of Miami and

serve Latin America. Id.

From the pilots’ perspective, the key element of the

\PA was its requirement that Pan Am supply Delta with

and cooperation. I JA 274, 334-35, 414. Cutrone acknowl-

edged, therefore, that Pan Am would have done whatever

the MEC wanted, as long as it “worked.” I JA 340.

B. With Pan Am in bankruptcy and selling off assets

in a desperate bid for survival, respondent Hauck

described the prospects of remaining at Pan Am as

“frightening.” I JA 487. As the sole ALPA representative

to the Pan Am creditors committee, respondent Burke,

the chairman of the MEC, was privy to material non-

public information about Pan Am’s worsening financial

condition and its unlikely prospects for surviving bank-

ruptcy (I JA 305), information that he shared with his co-

respondents on the MEC, but not with the pilots. I JA 286,

313. Based on this inside information, the other members

of the MEC shared Hauck’s and Burke’s view that Pan

Am’s chances of survival were dismal, and that those

pilots who were not able to transfer to Delta would

almost certainly lose their careers in a few months. I JA

294, II JA 27 at A4179. At no time during the relevant

events, however, did the MEC share any of this critical

information with petitioners and their fellow pilots.

On July 20, Cutrone made a presentation to Delta at

which he stated that Pan Am could complete 120 “long-

course” A-310 training classes (i.e., training for pilots

who had no previous experience on the aircraft, which

included many petitioners) by November 1. Pet. App. A4.

This would have provided Pan Am with a sufficient

number of “current and qualified” pilots to meet Delta’s

requirements. On July 24, Cutrone made a similar presen-

tation to union officials and again stated that Pan Am

could complete 120 long-course training classes by

November 1. I JA 333, 488. To that end, documentary

evidence presented at trial established that on August 1,

Pan Am authorized the expenditure of over $800,000 to

purchase enough A-310 flight simulator time for 120

long-course training positions. | JA 329, 339, Hi JA 69. Pan

Am also arranged to use its own simulators in Miami,

and Canada Air’s simulators in Toronto. Id

As petitioners showed at trial, Cutrone’s repeated

representations that Pan Am could train only 120 long

course positions on the A-310 created an unavoidable

conflict of interest for the individual respondents a

conflict between preserving their own careers or repre

senting the interests of petitioners and their fellow pilots

fairly and honestly by ensuring that the selection of pilots

for training, and therefore transfer to Delta, respected the

seniority principle at the heart of the PWA. For example

two union officials, respondents Littlefield and Lankford,

were not current and qualified on the A-310 and were

respectively, numbers 1449 and 1565 on the seniority list

of over 2000 pilots.4 I JA 479-80. Respondent Burke

chances of being among the pilots trained on the A-310

were also minimal since he also had a low seniority

number (number 938), and because he was not current oO!

the B-727, he should have had no chance of transferring

on that aircraft either, regardless of his seniority. I JA 305

413, 479.

4 Similarly, respondent Kelley, an A-300 first office

number 1274 on the list. Respondent Bible, a B-727 captain, was

746 on the list. Respondent Hauck was an A-300 captain and

number 598 on the seniority list. None of these respondent

were likely to be among the 120 pilots trained on the A-310 if

seniority were followed.

The initial response of the MEC to the situation its

members found themselves in was to seek a delay in the

closing date of the APA to allow more time for training

pilots, thus increasing the number of pilots who could be

trained, but on July 31, Delta rejected the MEC’s delay

proposal. Pet. App. A5. Having failed to convince Delta

to push back the November 1 deadline, and with only 120

training positions on the A-310 available, respondents’

conflict of interest hardened into actual self-dealing,

deceptive and discriminatory conduct, and arbitrary deci-

sion-making.

On August 2, the union convened a critical 4-day

meeting in Coral Gables, Florida to discuss, among other

things, the methodology for selecting pilots for training.

Pet. App. A5. Before that meeting, however, respondent

Hauck set out to devise a training methodology that

would ensure that he and several other members of the

MEC would transfer to Delta on the A-310. [JA 281, ITJA

60. Rather than offer pilots, in strict seniority order, the

120 long-course training slots that Cutrone said were

available, Hauck designed a plan that called for Pan Am

to provide only short-course, “requalification” training to

pilots who had previously been qualified on the A-310,

but were no longer current on that aircraft. Pet. App. A6.

Not coincidentally, Hauck had previously flown the

A-310, and was thus eligible for requalification training.

ld. The same was true of other union officials. Id. In short,

as the pilots showed at trial, the MEC decided to abandon

seniority in favor of a training methodology that bene-

fited its own members over other, more senior pilots.

On August 2, the MEC worked to reach agreement

regarding the methodology that would be used to select

pilots for training and possible transfer to Delta. Hauck

wrote in his August 2 notes that “[w]e need to develop

the MEC [training] plan TODAY. We need to decide who's

going to [Delta].” Il JA 64 (capitalization in original;

emphasis added.) The evidence showed that on August 4,

the MEC reached agreement on use of a requalification

methodology for the A-310 rather than offering long-

course training. I JA 310-11, II JA 63 at A3900. However,

in an effort to disguise its role in that determination,

respondents deleted all references to its decision on train-

ing methodology from the minutes of the Coral Gables

meeting that were distributed to the pilots. I JA 263, 273,

317, 465-66, 472-73, II JA 62 at A46.

On August 5, respondents submitted their plan to

Pan Am’s vice-president of operations and, as expected,

Pan Am acceded to the MEC’s requalification plan. I JA

285, II JA 70 at A005425. At trial, respondents conceded

that this “agreement” on the method for choosing pilots

for training constituted a modification of the PWA. I JA

302-03, 416, 494. However, contrary to the express

requirements of ALPA’s constitution and bylaws, as well

as its usual practices, the union never reduced this critical

agreement to writing, and never had it signed by ALPA’s

president. I JA 272, 491.

C. Respondents then engaged in a series of decep-

tive acts and made a number of misrepresentations

designed to hide, and delay discovery of, their involve-

ment in the abandonment of seniority as the touchstone

for training and transfer to Delta. On August 6, for exam-

ple, the MEC issued a message to all pilots falsely stating

that it had been meeting to determine a training meth-

odology but was “unable to decide between the final two

methodologies,” (II JA 14) and that the issue would there-

fore be submitted to an arbitrator on August 8 or 9. Pet.

App. A6. Another message issued on August 7 stated that

the arbitration would be held on August 9 and that the

subject would be “[t]he methodology for the training and

transfer of Pan American pilots to Delta,” even though, of

course, the MEC had already decided that issue at Coral

Gables. Il JA 30 (emphasis in original).

On August 9, the MEC presented its purported dis-

pute to an arbitrator, Sam Kagel. In marked contrast to

their position at trial regarding the inapplicability of the

PWA to the Delta transaction, each of the respondents

agreed at that arbitration that the methodology for train-

ing pilots for possible transfer to Delta had to be based on

seniority according to the PWA. III JA 80. Despite their

statements to pilots that Kagel would decide which train-

ing methodology would be used on both the B-727 as well

as the A-310, respondents never submitted the A-310

training issue to Kagel. I JA 280, 287-88, 299, 312, 320,

483-85, 496. Therefore, the only issue decided by Kagel

was whether the PWA required training on the B-727 to

be offered to award holders from a proffer the previous

February or whether, under the circumstances of the

Delta transaction, a new proffer was required. Pet. App.

Ab.

However, Kagel’s decision on the B-727, issued on

August 9, underscored the central importance of seniority

under the PWA, and the duplicity of the MEC’s selection

of a requalification methodology for the A-310. Kagel

decided that the seniority principles at the heart of the

PWA were so important that they required a new proffer

in strict seniority, for B-727 training. Pet. App. A6. Inar

guably, he would have reached the same conclusion for

the A-310 had respondents not withdrew the issue from

him

Continuing their efforts to delay discovery of thei:

responsibility for selecting the requalification methodol

ogy (Pet. App. A17), the MEC issued a message to pilots

on August 10 that falsely stated that Kagel had actually

decided the methodology for training, not only on the

B-727, but also on the A-310

To the extent possible, in recognition of the

training constraints, pilots be proffered training

on either the A-310 or B-727 in system seniority

order, and the identified airmen who are current

—

and qualified on either the A-310 or the B-727

aircraft, at the time of transfer of assets to Delta

Air Lines, be afforded that privilege in system

seniority order regardless of class and craft at

Pan American

Il JA 20. As respondents admitted at trial, its messages to

yilots regarding the Kagel arbitration were “inaccurate.’

} 44 by Mh

[he jury was certainly entitled to conclude that they were

deliberately so.

At an August 15 union meeting in New York, over

which respondents Hauck and Burke presided, respon

dents continued their campaign of deception to distance

themselves from responsibility for the adoption of the

requalification methodology on the A-310, to obscure

their conflict of interest, and to confuse the pilots about

the true state of affairs. Once again, Hauck misrepre-

sented to the pilots that Kagel, rather than the MEC itself

had decided that training on the A-310 would be done on

a requalification basis only. Pet. App. A17. Hauck also

lied about which of the respondents on the MEC were

likely to transfer to Delta under the requalification meth-

odology. He specifically said that only respondents

Anderson, Hauck and Littlefield were “in the zone” for

transfer to Delta. 1 JA 327, II JA 66 at 19. According to

Hauck, respondents Bible, Kelley, and Burke were not “in

while Lankford was described as “fur-

loughed.” Id. In fact, however, every member of the MEC

except Kelley transferred to Delta, and Kelley went to

the zone,’

United. Pet. App. A7. The very last person to receive

training on the A-310 was Lankford, whose seniority was

1565 out of approximately 2000 pilots and who was thus

the most junior member of the MEC. I JA 368-69. The jury

was entitled to conclude that this was no mere coinci-

dence, but rather the fulfillment of the union officials’

scheme to transfer to Delta by adopting a requalification

training methodology in lieu of following seniority, as the

PWA required.

D. Despite the MEC’s attempts to conceal its self-

dealing, it eventually became apparent that pilots were

not being offered the opportunity for training based upon

seniority. Unaware of the MEC’s complicity with Pan Am

in the abandonment of their seniority rights, several peti-

tioners asked respondents for assistance in filing a griev-

ance against Pan Am to protest the abandonment of their

seniority rights under the PWA. Yet the MEC refused to

provide any assistance to petitioners, and not sur-

prisingly, Pan Am denied the grievances at the first step.

Pet. App. All, A116.

In addition, on August 28, respondent Burke exe-

cuted a secret agreement with Delta and the Delta MEC

that effectively waived the rights of all Pan Am pilots to

challenge the manner of their selection for transfer to

Delta and their integration into the Delta pilots’ seniority

lists.° I JA 314, 315-16, II JA 38. Burke entered into this

secret agreement, however, without any resolution

authorizing him to waive the pilots’ rights and without

ever informing the pilots of this critical agreement affect-

ing their rights. I JA 416. Not surprisingly, therefore, on

November 1, Burke transferred to Delta as a B-727 co-

pilot. Although the APA expressly required all transfer-

ring pilots to be current and qualified on the A-310 or

B-727, it was undisputed that Burke lacked those quali-

fications. Indeed, of the nearly 800 Pan Am pilots who trans-

ferred to Delta, respondent Burke — the Chairman of the MEC

— was the only non-management pilot who was not current and

qualified at the time of his transfer to Delta. I JA 266, 305,

318-19.

II. On December 4, 1996, after the members of the

MEC had transferred to Delta, their new employer

decided that it would not fund a restructured Pan Am. I

JA 178. Pan Am immediately ceased operations. Unlike

° The secret agreement provided in pertinent part: “The

Parties [Pan Am MEC, Delta MEC and Delta management]

agree to accept the method of selection of Pan Am pilots that

Detta has implemented in connection with the acquisition. . . .

The Parties will support and defend this Agreement from any

challenge and will make no effort, either direct or indirect, to

overturn or challenge it in any court proceeding or other forum.” IJA

38 (emphasis added).

Burke and the other respondents, petitioners lost their

jobs, and in some instances, their careers. The pilots then

sued their former union, alleging that the members of the

MEC had abandoned seniority in the training and trans-

fer of pilots for Delta for their own selfish purposes, in

violation of their federal labor law duty of fair represen-

tation as elected union officials. Pet. App. A7. In defense,

the union argued that the seniority provisions of the PWA

did not apply to the transfer of pilots to Delta and that

“constraints” created by a purported lack of money and

training simulator capacity made it impossible to train

pilots based on system seniority. The pilots submitted

testimony and documentary evidence to show that there

were no constraints that would have prevented the union

from adhering to seniority provisions of the PWA, which

did, in fact, govern the training of pilots for transfer to

Delta, as the union members themselves had acknowl-

edged during the Kagel arbitration.

Thus, over the course of a three-week trial, the par-

ties presented two extremely divergent factual cases to

the jury, each dependent upon the credibility of a number

of witnesses. The district court (Weinstein, J.) expressly

asked the jury to determine whether ALPA had breached

its duty of fair representation by acting in “bad faith,”

“arbitrarily,” or “discriminatorily” — all quintessential

jury questions. For three days the jury deliberated about

the evidence, asking the court clarifying questions and

reviewing key exhibits.° After one juror was dismissed

6 Significantly, the very first exhibit that the jurors

requested to review after they had begun their deliberations

was the transcript of the Kagel arbitration.

during deliberations due to illness, the 11 remaining

jurors completed a detailed verdict form recording their

verdicts as to each of the 109 original plaintiffs. The jury

unanimously found that respondents had breached their

duty of fair representation in three distinct ways: by bad

faith, arbitrary and discriminatory conduct. Pet. App.

A34-40. However, after carefully considering the evi-

dence, the jury found that only 82 of the 109 plaintiffs

had been legally injured by ALPA’s breach (id. at A8,

A34-40), which the court had defined as whether ALPA’s

actions caused a pilot to be denied training or otherwise

to be prevented from applying for transfer to Delta.

The district court, however, would not abide the

jury’s verdict that the union had betrayed the pilots.

Nearly one year after the jury had rendered its verdict,

the district court rejected the jury’s verdict and findings

and granted ALPA judgment, pursuant to Rule 50 of the

Federal Rules of Civil Procedure, in a 6-page decision

devoid of citation to any case law, the 3077-page tran-

script or a single exhibit. Id. at A8, A23-27.’

III. The pilots timely appealed from the judgment

of the district court, and on August 12, 1998, a three-

judge panel of the United States Court of Appeals for the

Second Circuit issued a decision affirming the judgment.

The court of appeals’ decision is notable in several

respects. First, the court stated that the standard of

7 The district court also conditionally granted ALPA a new

trial on the ground that the jury, which had found against 21

plaintiffs, must have been “swayed by prejudice.” Pet. App. A%,

A26.

review required it to affirm the district court’s judgment

if “there is such an overwhelming amount of evidence in

favor of the movant that reasonable and fair minded

[jurors] could not arrive at a verdict against [it].” Id. at

Al0.

Second, although the court of appeals properly rec-

ognized that a union’s interpretation of its collective bar-

gaining agreement is not entitled to deference if it is

based upon improper motives (id. at A13), the court

utterly failed to address the pilots’ principal argument -—

that the jury had reasonably concluded that ALPA’s prof-

fered interpretation of the PWA was a litigation contriv-

ance based upon improper motives. Instead, the court

simply concluded that the union’s interpretation of the

PWA, while “arguably wrong,” was not “so unreasonable

as to constitute a breach of the duty of fair representa-

tion.” Id. Drawing upon this conclusion, the court then

held that, as a matter of law, certain specific actions of the

MEC - such as its failure to process the pilots’ grievances

and its secret agreement with Pan Am to “modify” the

PWA -— did not constitute arbitrary, bad faith or discrimi-

natory conduct.

Third, the court of appeals agreed that the evidence

supported a finding that respondents had “delayed con-

fessing [their] agreement with Pan Am for a period of

time (or masked that agreement by claiming that the

arbitrator decided the issue).” Id. at A17. Nevertheless,

the court then erroneously concluded that their delay did

not prejudice petitioners. Id.

REASONS FOR GRANTING THE WRIT

This petition principally asks the Court to establis!

constitutionally permissible, uniform legal standard f

reviewing motions for judgment as a matter of law unde

Rule 50 of the Federal Rules of Civil Procedure. There

significant and direct conflict among the federal circuit

as to the appropriate legal standard for considering Ru

50 motions, as many commentators have long recogniz:

Compare Mattern v. Eastman Kodak Co., 104 F.3d 702, 7

(Sth Cir.), cert. denied, 118 S. Ct. 336 (1997) (court

consider all of the evidence); St. Paul Fire & Marin

Co. v. Vaughn, 779 F.2d 1003, 1008 (4th Cir. 1985) (c

may consider “all of the evidence favorable to the |

tion of the party opposing the motion as well as

unfavorable evidence that the jury is requirea

believe”); Day v. Amax, Inc., 701 F.2d 1258, 1262-63 (8t

Cir. 1982) (court may only consider evidence favora

party opposing motion).

Although the Court, more than half a centur'

rejected a facial challenge to Rule 50 as contrary t

Seventh Amendment, see Galloway v. U.S., 319 U.S

(1943), the absence of a uniform legal standard it

circuit courts puts at risk the constitutional right of |

ties to have disputed issues of fact resolved by juris

explained below, many courts, including the Second

cuit in this case, apply a legal standard for deciding f

50 motions that allows a court to consider all of

evidence presented at trial, including unfavorable

disputed evidence presented by the moving party

deciding whether, as the Court of appeals stated here

movant’s evidence “overwhelmed” the evidence

sented by the nonmovant. This legal standard inevital

allows courts to weigh the evidence and to make cred-

ibility determinations. Yet each are functions that the

Seventh Amendment allocates solely to the jury. More-

over, using such a standard of review improperly con-

flates the standard for determining a motion for

judgment as a matter of law with the standard that gov-

erns motions for new trial, under Rule 59, on the ground

that the verdict is against the weight of the evidence.

As Justice White observed 16 years ago, “the scope of

review will often be influential, if not dispositive, of a

motion for judgment n.o.v. ... ” Schwimmer v. Sony Corp.

of America, 459 U.S. 1007, 1009 (1982) (dissenting from

denial of petitions for writs of certiorari). Consistent with

Justice White’s observation, because the court of appeals

applied the wrong standard, it reached the wrong result

in granting respondents judgment as a matter of law.

In addition, petitioners ask the Court to review the

court of appeals’ conclusion that they had failed to estab-

lish that the union’s conduct caused them injury. As

explained in greater detail below, the court could only

reach this conclusion by treating all 82 petitioners as part

of a homogenous group, with indistinct claims. Pursuant

to Rule 20(a) of the Federal Rules of Civil Procedure,

however, the joinder of petitioners in this action was

merely procedural. Thus, the court was required to con-

sider each petitioner’s claim on its own merits, which it

demonstrably failed to do.

I. THE SECOND CIRCUIT’S LEGAL STANDARD

FOR REVIEWING A DISTRICT COURT’S GRANT

OF JUDGMENT AS A MATTER OF LAW VIO-

LATES RULE 50 AND THE SEVENTH AMEND-

MENT.

A. The Court of Appeals Improperly Weighed the

Evidence and Made Credibility Determina-

tions.

The Second Circuit properly reviewed the district

court’s grant of judgment as a matter of law de novo. Pet.

App. A9. However, the legal standard that the court of

appeals used in considering the motion for judgment as a

matter of law was incorrect and unconstitutional. Accord-

ing to the Second Circuit, the proper standard for review-

ing a Rule 50 judgment required it to affirm the district

court if: “(1) there is such a complete absence of evidence

supporting the verdict that the jury’s findings could only

have been the result of sheer surmise or conjecture, or (2)

there is such an overwhelming amount of evidence in favor of

the movant that reasonable and fair minded [jurors] could not

arrive at a verdict against [it].” Id. at A10. (emphasi

added). There can be no doubt that the court of appeals

affirmed the judgment of the district court not because of

an absence of evidence supporting the pilots’ claim, but

rather because the court believed that the union’s evi-

dence “overwhelmed” the pilots’ evidence.

This is apparent from the court’s conclusion regard-

ing the union’s defense of “constraints” and its inter-

pretation of the PWA. For example, ALPA made the

Strategic decision to support its “constraints” defense

with the testimony of one witness — Vito Cutrone. ALPA’s

story that its actions during the fall and summer of 1991

were dictated by alleged “constraints” was based entirely

on what Cutrone allegedly told ALPA and his own supe-

riors at Pan Am during that time period. The jurors,

however, obviously did not believe Cutrone, and they

were entitled to reject his testimony. The evidence pre-

sented at trial, however, established that Cutrone was not

a disinterested witness and that his trial version of events

was inconsistent with his own testimony, documentary

evidence and the testimony of other witnesses. And with-

out Cutrone’s testimony, ALPA had no evidence (other

than inadmissible hearsay) to support its story that var-

ious “constraints” precluded a training selection meth-

odology that followed seniority. The jurors were also

entitled to reject respondents’ interpretation of the PWA

as the product of self-interest and as contrary to the

union's past interpretation of the PWA and the positions

they had taken before arbitrator Kagel.

Nevertheless, throughout its opinion the court of

appeals expressly relied upon alleged “facts” that were

derived entirely from Cutrone’s testimony. Moreover, it

did so without having observed Cutrone testify, as the

jury did. The court also deferred to the union’s inter-

pretation of the PWA without ever addressing the pilots’

claim that the interpretation was a litigation contrivance,

particularly in view of the union’s self-interest and the

position that it had taken on the PWA during the Kagel

arbitration. See supra at 10.

By applying a standard of review that permitted it to

decide whether the union’s evidence “overwhelmed” the

pilots’ evidence, the court of appeals weighed the con-

flicting evidence on these and other issues and made its

own credibility determinations in a case where the

vidual respondents’ state of mind the motive or pur

pose for their actions — was central to the pilots’ claim

this Court has repeatedly held, however, the Seventl

Amendment allocates those tasks to the jury, not the

judge. See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 54

554 (1990) (“[In] considering a motion for a directe

verdict, the court does not weigh the evidence, but dr

ill factual inferences in favor of the nonmoving part

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25 LOE

“Credibility determinations, the weighing of the

dence, and the drawing of legitimate inference:

facts are jury functions, not those of a judge

evidence of the nonmovant is to be believe

justifiable inferences are to be drawn itn his tav

tandard of review that the court of appeals appli

renders a motion for judgment as a matter

Rule 50 virtually indistinguishable from a motion f

new trial under Rule 59 on the ground that the verdict

against the weight of the evidence. See Gasperini

Humanities, Inc., 518 U.S. 415, 432 (1996) (trial judg«

federal system has “discretion to grant a new trial if t!

verdict appears [to the judge] to be against the weight

the evidence”). Indeed, commentators have noted t!

tendency of courts to confuse the standards applicable t

these two motions, the granting of which obviously p1

duces very different outcomes for a plaintiff. S

Wright & Miller, Federal Practice and

§ 2806 at 63-64 (1995) [hereinafter Federal Practice|. That is

. :

Procedure L 1VI]

precisely what occurred here with the Second Circuits

adoption of an incorrect standard for reviewing the juds

ment as a matter of law.

The proper standard of review under Rule 50 would

have restricted the court of appeals to considering only

the evidence that the pilots presented in support of their

claim and any unfavorable evidence presented by the

union that the jury was required, as a matter of law, to

believe.* The Court’s decision in Wilkerson v. McCarthy,

336 U.S. 53 (1949), is consistent with this standard. In

Wilkerson, the Court stated:

It is the established rule that in passing upon

where there is sufficient evidence to submit an

issue to the jury we need look only to the evi-

dence and reasonable inferences which tend to

support the case of a litigant against whom a

peremptory instruction has been given.

Id. at 57.9 See also Webb v. Illinois, 352 U.S. 512, 513-14

(1957) (quoting Wilkerson with approval); 9A Federal Prac

tice § 2529 at 300-01 (describing Wilkerson as consistent

with standard of review that permits consideration of

favorable evidence and evidence that jury is required to

believe). This is also the position of the Fourth Circuit,

and commentators. See St. Paul Fire & Marine Ins. Co., 779

F.2d at 1008 (court may consider “all of the evidence

favorable to the position of the party opposing the

* Evidence that a jury is required to believe includes, for

example, evidence of undisputable natural laws of physics or

undisputed physical facts. See 9A Federal Practice § 2527 at 285.

Such evidence might also include uncontradicted and

unimpeached testimony from disinterested witnesses. See id. at

286. The union presented no such evidence in this case.

° In Wilkerson, there was no unfavorable evidence of a type

that the jury was required to believe. See 9A Federal Practice

§ 2529 at 301.

motion as well as any unfavorable evidence that the jury

is required to believe”); Edward H. Cooper, Directions for

Directed Verdicts: A Compass for Federal Courts, 55 Minn. L.

Rev. 903, 948-53 (1971); 9A Federal Practice § 2529 at

299-300 (“The correct rule seems to be that the district

court may consider all of the evidence favorable to the

position of the party opposing the motion for judgment

as a matter of law as well as any unfavorable evidence

that the jury is required to believe.”).

Had the court of appeals applied the correct legal

standard, the court could not have affirmed the district

court's grant of judgment as a matter of law. The pilots

submitted evidence to show that the union’s constraints

defense was contrived and contrary to Cutrone’s own

analysis that Pan Am could train 120 pilots on long-

course training by November 1. The jury also heard from

the former director of Pan Am’s training facility, who was

responsible for finding simulator training time for Pan

Am pilots and who testified as an expert witness. He

expressly rejected Cutrone’s testimony about the lack of

simulator capacity and stated that Pan Am easily could

have obtained sufficient simulator capacity to train

enough pilots, in seniority order, to meet the Delta quota.

In short, had the court of appeals applied the correct legal

standard, petitioners submit that it would have been

compelled to conclude that the evidence supported the

jury’s findings and verdict that: 1) the PWA required the

selection of pilots for training for possible transfer to

Delta to be based on seniority; and 2) that Pan Am had

sufficient time, money and simulator capacity to select

petitioners for training according to seniority.

The pilots’ challenge to the legal standard that the

court of appeals applied in this case is, therefore, not

merely a debate about semantics. As Justice White

observed, the choice of the standard of review that an

appellate court applies in reviewing a judgment as a

matter of law can be dispositive, and it certainly was in

this case. The Court should grant this petition to establish

the proper legal standard and thereby correct an error

that deprived the pilots of their constitutional right to

have their claims decided by a jury.

B. A Longstanding Conflict Exists Among the Cir-

cuit Courts Regarding the Proper Legal Stan-

dard for Reviewing the Grant of Judgment as a

Matter of Law.

rhe legal issue that the pilots seek to have the Court

address is not limited to the Second Circuit’s decision in

this case. As one commentator has stated, “There has

been some controversy concerning what portion of the

evidence the trial court is to consider in deciding on a

motion under Rule 50 whether there is a jury issue.” 9A

Federal Practice § 2529 at 297. The Eighth Circuit’s long-

standing position is that consideration should be limited

to evidence favorable to the verdict, and nothing more.

See, e.g., Day v. Amax, Inc., 701 F.2d at 1262-63; Simpson v.

Skelly Oil Co., 371 F.2d 563, 566-67 (8th Cir. 1967). By

contrast, the Fifth and Ninth Circuits, like the Second

Circuit, permit consideration of all of the evidence. See,

e.g., Mattern, 104 F.3d at 705. The Fourth Circuit, as noted

above, follows what petitioners believe is the correct

standard — it restricts review to all of the evidence favor-

able to the position of the party opposing a Rule 50

motion as well as any unfavorable evidence that the jury

is required to believe. See St. Paul Fire & Marine Ins. Co.,

779 F.2d at 1008. This lack of uniformity has not gone

unnoticed by commentators. See, e.g., 9A Federal Practice

§ 2529 at 297-301 (discussing split among the circuits).

A correct and uniform legal standard for motions for

judgment as a matter of law under Rule 50 is essential to

protect the constitutional rights of litigants to have dis-

puted issues of fact resolved by a jury. Accordingly, the

Court should grant this petition to resolve this longstand-

ing controversy among the circuit courts of appcal with

respect to the legal standard for reviewing judgments as a

matter of law under Rule 50.

Il. THE COURT OF APPEALS VIOLATED THE SEV-

ENTH AMENDMENT AND RULES 50 AND 20(a)

IN CONCLUDING THAT PETITIONERS HAD

FAILED TO ESTABLISH CAUSATION.

In addition to asking the Court to address and correct

the Second Circuit’s application of the wrong legal stan-

dard for reviewing a judgment as a matter of law under

Rule 50, petitioners also ask the Court to review the court

of appeals’ related and erroneous conclusion that “[e]ven

if the evidence supported the jury’s conclusion that ALPA

breached its duty of fair representation, the pilots failed

to adduce any evidence that the breach caused their

injury.” Pet. App. A20 (emphasis added). This conclusion

was fatally flawed for two fundamental reasons.

First, the court of appeals’ causation decision was the

product of the application of the same constitutionally

infirm legal standard that infected its review of the pilots’

claim that ALPA had breached its duty of fair representa-

tion. In other words, the court of appeals improperly

weighed the unfavorable and disputed causation evi-

dence that the union had submitted, rather than consider-

ing whether the pilots’ evidence was sufficient to

establish causation. See supra at 19-24.

For example, the court of appeals’ conclusion that

ALPA’s failure to prosecute the pilots’ grievances was of

no consequence flowed directly from its earlier conclu-

sion that those grievances were meritless. Pet. App. A16.

To reach that conclusion, however, the court of appeals

first had to decide that the seniority provisions of the

PWA did not require Pan Am to offer training on the

A-310 and B-727 to pilots in seniority order as part of the

Delta transaction. That decision is unsupportable for at

least three reasons. One, the plain language of the

seniority provision of the PWA required seniority to be

followed in all situations “except where specifically

excepted in the [PWA].” Thus, the provision established

seniority as a default standard. Pet. App. Ai2. Two, the

evidence of the Kagel arbitration established that the

respondents themselves understood that the PWA

applied in the context of the Delta transaction and that

their contrary position at trial was a litigation contriv-

ance. Three, Kagel, a neutral arbitrator, actually decided

that the PWA required training in seniority order.

In the face of this evidence, the court of appeals erred

in deferring to an interpretation of the PWA that the

union proffered only while in litigation and in concluding

that pursuit of the grievances would have been fruitless.

Because the evidence established that the pilots had a

legal right under the PWA to bid for training based on

seniority, they were entitled to damages they suffered as

a result of Pan Am’s breach of the PWA, a breach in

which ALPA actively participated. See, e.g., Vaca v. Sipes,

386 U.S. 171, 187 (1966).

Second, pursuant to Rule 20(a) of the Federal Rules

of Civil Procedure, the joinder of the pilots in this action

was merely procedural and did not alter their substantive

rights. Each pilots’ right of action remained distinct, as if

separately brought. See Fed. R. Civ. P. 20(a) (“Judgment

may be given for one or more of the plaintiffs according

to their respective rights to relief... .”); 7 Federal Practice

§ 1652 at 375 (stating proposition). Thus, each pilot was

entitled to have his own claim, including the causation

element of the claim, evaluated on its own merits.

The court of appeals, however, did not adhere to Rule

20(a). Instead, as its opinion reveals, it treated the pilots

as a homogenous group with indistinct claims, as if they

were part o a class action. Had the court of appeals

evaluated each pilots’ claim on its own merits, it would

have been compelled to conclude that sufficient time,

money and simulator capacity existed to offer training to

at least some of the petitioners based upon seniority. As

but one of many examples, petitioner Stewart Beckett, a

Boeing 747 captain at the time of Pan Am’s demise, was

number 84 on the Pan Am seniority list of over 2000

pilots. I JA 423. He surely would have been trained on the

A-310, and thus been eligible for transfer to Delta, had

respondents not abandoned the principle of seniority in

the selection of pilots for training. Yet the court of

appeals’ opinion never even discusses the individual ver-

dict of any petitioner, but merely assumes that the

union’s “constraints” defense would have prevented

<criminatory

Ih} the mury

and

Of 1O9 pilots

finding that the

arbitrary

union

conduct had

the court of appeals

Ne VU

the proper standard of review for a

failed to consider each individual

required by Rule 20(a). This Court

ri to correct these important error:

t the jury’s role in decidi

ONCLUSION

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Mark R. Ky

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(one Century lowe!

?.( Box 1832

Haven. CT 06508 Q

140

4 19S

Edward J. SPELLACY, Jr.; Stewart W. Beckett, Jr.;

Raymond H. Albers, Il; Gordon N. Almquist; Gary

K. Armstrong; Donald C. Arneson; James Bailey; W.

Schafer Bean; William Harvey Benefield; Tad H.

Bingham; Vidmantas K. Bliumfeldas; Rudolph

Brabenec; Robert E. Brickey; Michael D. Burke;

Dallas E. Butler; James R. Byrne; James Canitz;

Gerald W. Cassidy; Robert C. Cassube; Thomas

Ceranic; David M. Criley; John W. Cunningham;

Donald E. Dale, Jr.; Michael J. Dunn; Thomas G.

Ebbert; Gerald L. Ellison; Jerome P. Fox; Robert K.

Frank; Howell J. Gannon; Benjamin F. Greer; Robert

, L. Harrell; Albert G. Harrison; William H. Hart;

« Reginald W. Havill; Robert H. Hays; David K.

Holland; Thomas L. Hurd; David E. Jones; Austin L.

Joyner; Terrence J. Kane; David A. Klau; Donald K.

Law; Byron C. Lewin; Manuel J. Lewis; Keith J.

Mackey; John A. Marshall; Kenneth G. McAdams;

Robert C. McGrory; Jan A. Menke; James W. Miller;

John R. Neff; Ernest J. Neuwald; Thomas M. O’Dell;

Terry W. Pope; Michael E. Ranslam; Frank C. Rice;

Richard D. Robbins; Jack J. Rogers; Stanley A. Roitz;

K. David Savage; Carl E. Schmeusser; George H.

Schumacher; Conrad E. Smith; Dorsey L. Spaulding;

Michael N. Stafford; William A. Stevens; Timothy G.

Sullivan; M. Joel Thompson; John W. Tiger;

Constantine G. Vlahakis; J. Robert Wardin; John S.

Wentworth; John L. White; John N. Zoiler; Donato

D’Angelico; Keith Erlewine; Alto J. Furlong, Jr.;

Kenneth Lemming; William A. Pitsker; Harry

Shepard; Bill M. Shuster; and Frank Z. White,

Plaintiffs-Appellants,

AIRLINE PILOTS ASSOCIATION-INTERNATIONAL;

J. Randolph Babbitt, III; Richard L. Burke; Sigfrid

W. Hauck; Kenneth C. Lankford; John Mitvalsky;

Robert E. Anderson; Robert F. Bible; G. Hart Kelley;

and Gustave M. Littlefield, Defendants-Appellees.

No. 97-7666.

United States Court of Appeals,

Second Circuit.

Argued April 3, 1998.

Decided Aug. 12, 1998.

Mark R. Kravitz, Wiggin & Dana, New Haven, Con-

necticut (Daniel J. Klau, of counsel), for Plaintiffs-Appel-

lants.

Michael E. Abram, Cohen, Weiss and Simon, New

York City (Peter Herman, Thomas N. Ciantra, Tamir W.

Rosenblum, of counsel), for Defendants-Appellees.

Before: MCLAUGHLIN, PARKER, Circuit Judges, and

HURLEY, District Judge.*

BACKGROUND

McLAUGHLIN, Circuit Judge.

Pan American Airlines (“Pan Am”) went bankrupt.

Plaintiffs-Appellants are 88 of the approximately 1600

pilots who used to fly for Pan Am. These pilots were

represented by the Airline Pilots Association-Interna-

tional (“ALPA”), the certified collective bargaining repre-

sentative for pilots employed by all the major airlines

operating in the United States. Under ALPA’s union

structure, the pilots for each airline elect a Master Execu-

tive Committee (“MEC”), of pilots. Subject to ALPA’s

* The Honorable Denis R. Hurley of the United States

District Court for the Eastern District of New York, sitting by

designation.

oversight, the MEC makes the collective bargaining de

sions for the union in negotiations between the airline

and its pilots.

The MEC for Pan Am pilots had three officers ana

four elected representatives. At all times relevant to this

appeal, Richard Burke, Robert Anderson, and Gordo:

Littlefield were, respectively, the Chairman, Vice-Chair

man and Secretary-Treasurer of the MEC. The four

elected representatives were Sigfried Hauck, Kennet!

Lankford, Robert Bible, and G. Hart Kelley.

Pan Am occupies a venerable position in the history

of American aviation. In the late 1960’s, however, Pan An

ran into financial turbulence. After struggling to survive

for two decades, Pan Am began to sell assets. In 1985

sold its Pacific routes to United Airlines (“United”). [1

late 1990, Pan Am sold additional aircraft and routes t

United. However, these asset sales merely delayed thi

inevitable. In January 1991, Pan Am filed for reorganiza

tion under Chapter 11 of the bankruptcy laws.

While in reorganization, Pan Am continued to searc!

for potential buyers of its remaining assets. In early July

1991, the MEC informed Pan Am pilots that Delta Air

lines (“Delta”) had agreed to buy Pan Am’s North Atlar

tic routes and “shuttle” operation. Under the proposec

Asset Purchase Agreement (“APA”), Pan Am would sel!

its entire fleet of Airbus 310 (“A-310”) aircraft and up t

19 of its Boeing 727 (“B-727”) aircraft to Delta. In return

Delta would sponsor and fund Pan Ams reorganizatiol

as a going airline, purchase a 45% equity stake in Par

Am, and establish a marketing alliance with Pan An

Pan Am also agreed to supply Delta with nearly 800

pilots who were “current and qualified” on those two

planes. A “current and qualified” pilot is one who is

trained to fly a particular airplane and has made three

takeoffs and landings on that plane within the last ninety

days. Delta needed approximately 494 qualified pilots for

the A-310 aircraft and 280 for the B-727. Since Pan Am

did not have enough “current and qualified” pilots to

satisfy Delta’s needs, it needed to train some of its pilots

for transfer to Delta. Pan Am and Delta agreed that the

transfer of pilots and assets would occur no later than

November 1, 1991.

On July 20, 1991, Pan Am’s crew chief, Vito Cutrune,

presented a proposal to Pan Am, Delta, and the MEC that

would allow Pan Am to offer pilot training on a strict

seniority basis. He concluded that Pan Am had enough

money and flight simulator capacity to complete 120

“long course” training programs for the A-310 and 22

long course programs for the B-727. Long course pro-

grams were designed for pilots who had never before

flown the A-310 or B-727. Accordingly, since every Pan

Am pilot would be eligible for training under Cutrune’s

proposal, the training would be offered on a strict

seniority basis.

The long course training proposal was consistent

with the seniority-based methodology by which most Pan

Am pilot assignments were determined. The Pilot Work-

ing Agreement (“PWA”), the collective bargaining agree-

ment between Pan Am and its pilots, provided that

whenever Pan Am projected a major change or “shift” in

its flight operations, it announced the change to the pilots

and issued a “proffer.” See PWA §§ 3, 5. The new flight

Short course training is a refresher course for pilots who

had once flown, but are no longer qualified to fly, a

particular airplane. Under the short course plan, only

pilots who had previously flown the A-310 were eligible

for training. While few Pan Am pilots had experience

flying the A-310, four members of the MEC had flown

this plane.

The short course plan was supported by Cutrune,

Pan Am’s crew chief, who told Pan Am executives that

his original training proposal, long course training, was

simply not feasible. He said that under his “revised anal-

ysis,” the necessary simulator time for long course train-

ing on the A-310 could not be arranged before the date of

sale. Cutrune explained, however, that the short course

plan could be accomplished. On August 8, 1991, Pan Am

and Delta decided to adopt the short course plan for the

A-310.

Rather than informing the pilots that a training plan

had now been adopted, the MEC told the pilots that Delta

was still open to alternative plans. They assured the

pilots that Delta would listen to any plan designed to

preserve the integrity of the seniority system. The MEC

also told the pilots that, rather than deciding which of the

competing plans it would endorse, ALPA and the MEC

would let an arbitrator decide which plan best served the

union’s interests. However, since Pan Am and ALPA had

agreed in principle on a plan governing retraining on the

A-310, the only issue presented to the arbitrator was the

B-727 training. The arbitrator recommended a training

plan for the B-727 based on strict seniority.

Following the arbitrator’s decision, ALPA, Pan Am,

and Delta entered into a formal agreement defining the

training for Pan Am pilots. ALPA agreed that the short

course training would be used for the A-310, but a strict

seniority system would be used to select pilots for B-727

training. The Bankruptcy Court approved this agreement.

When Pan Am sold the planes and routes in November

1991, six of the seven MEC members were on the list of

pilots to be transferred to Delta. Shortly thereafter, Pan

Am went out of business.

Accusing the MEC pilot members of feathering their

own nests, two groups of pilots sued ALPA and the

individual members of the MEC. The first group, the

“Spellacy” pilots, commenced an action in the United

States District Court for the District of Connecticut (Dor-

sey, J.), alleging that ALPA and the MEC breached their

duties of fair representation by adopting the short course

training plan. The Spellacy pilots asserted that ALPA and

the MEC violated their duties because: (1) the PWA

required that training opportunities be awarded on a

strict seniority basis and ALPA failed to protect the

pilots’ contractual rights; and (2) ALPA and the MEC

advocated the short course plan so that they could secure

pilot positions for themselves.

The second group, the “Duke” pilots, filed an action

in the United States District Court for the Eastern District

of New York (Weinstein, J.). These pilots each held a

“proffer,” — i.e., an offer from Pan Am to be transferred to

Delta. These proffers had been given before Pan Am

realized that it lacked a sufficient number of qualified

pilots to send to Delta. The Duke pilots alleged that

ALPA should first have ensured that Pan Am honored the

existing proffers before implementing a training program.

The actions were consolidated for trial in the United

States District Court for the Eastern District of New York

pursuant to 28 U.S.C. § 1404(a) and Fed. R. Civ. P. 42(a).

Judge Weinstein bifurcated the trial, directing that the

issue of liability be tried first. In June 1996, following a

three-week trial and three days of deliberations, the jury

returned a verdict for both sets of plaintiffs. The jury

found that ALPA had breached its duty of fair representa-

tion to both the Duke and Spellacy pilots by engaging in

bad faith, arbitrary, and discriminatory conduct. The jury

found that 82 Spellacy plaintiffs and 12 Duke plaintiffs

had been injured by ALPA and MEC’s conduct. ALPA

made a timely motion to set aside the verdict and for

judgment as a matter of law.

While this post-trial motion was pending, the Duke

pilots settled with ALPA. Nearly one year after the jury

verdict was rendered, Judge Weinstein set aside the ver-

dict for the Spellacy pilots and granted ALPA’s motion

for judgment as a matter of law. By Memorandum Order

and Judgment dated April 14, 1997, amended April 21,

1997, Judge Weinstein held that: (1) the PWA did not

require Pan Am to train pilots on a strict seniority basis;

(2) the A-310 short course training plan constituted a

reasonable balancing between seniority and cost; and (3)

there was insufficient proof that the MEC placed their

interests above those of the pilots.

Alternatively, Judge Weinstein held that a new trial

on the issue of ALPA’s liability was warranted. If the

grant of judgment as a matter of law was eventually

;

reversed, Judge Weinstein believed that the liability

phase should be retried because the evidence did not

support a verdict for the Spellacy pilots and the jury

“may have been swayed by prejudice against the [MEC].”

The Spellacy pilots now appeal, challenging both

prongs of Judge Weinstein’s decision. In response, ALPA

argues that even if Judge Weinstein’s decision was

improper, a new trial is required due to errors in Judge

Weinstein’s jury instructions.

DISCUSSION

Judgment as a Matter of Law

The pilots argue that Judge Weinstein erred when he

granted ALPA’s motion for judgment as a matter of law.

They contend that, viewing the evidence in the light most

favorable to their claims, either: (1) ALPA breached its

duty of fair representation by failing to fight for the

pilots’ rights under the PWA; or (2) ALPA and the MEC

engaged in various additional acts that constituted arbi-

trary, discriminatory, or bad faith conduct.

A. Standard of Review

We review de novo the district court’s order granting

judgment as a matter of law. See Schlaifer Nance & Co. v.

Estate of Andy Warhol, 119 F.3d 91, 98 (2d Cir.1997). “While

it is hornbook law that we may not substitute our view of

the evidence for the jury’s when that evidence allows

multiple legitimate inferences,” Goldhirsh Group, Inc. v.

Alpert, 107 F.3d 105, 108 (2d Cir.1997) (citations om:ited),

we will affirm a grant of judgment as a matter of law

Al10

when “(1) there is such a complete absence of evidence

supporting the verdict that the jury’s findings could only

have been the result of sheer surmise or conjecture, or (2)

there is such an overwhelming amount of evidence in

favor of the movant that reasonable and fair minded

[jurors] could not arrive at a verdict against [it].” Cruz v.

Local Union No. 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d

1148, 1154 (2d Cir.1994) (quotation omitted); see Binder v.

Long Island Lighting Co., 57 F.3d 193, 199 (2d Cir.1995).

B. Duty of Fair Representation

A union, of course, has a duty to represent fairly all

employees subject to the collective bargaining agreement.

See, e.g., Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 74, 111

S.Ct. 1127, 113 L.Ed.2d 51 (1991). This duty extends to

both the negotiation of a collective bargaining agreement,

see Ford Motor Co. v. Huffman, 345 U.S. 330, 336, 73 S.Ct.

681, 97 L.Ed. 1048 (1953), and its enforcement and admin-

istration. See Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903,

17 L.Ed.2d 842 (1967).

A union breaches its duty of fair representation if its

actions “can fairly be characterized as so far outside a

‘wide range of reasonableness’ . . . that [they are] wholly

‘arbitrary, discriminatory, or in bad faith.’ ” O'Neill, 499

U.S. at 67, 111 S.Ct. 1127 (quotation omitted). Judicial

“ “must be highly defer-

ential, recognizing the wide latitude that [unions] need

for the effective performance of their bargaining respon-

sibilities.’ ” Gvozdenovic v. United Air Lines, Inc., 933 F.2d

1100, 1106 (2d Cir.1991) (quoting O'Neill, 499 U.S. at 67,

111 S.Ct. 1127).

review of union action, however,

All

A union acts in bad faith when it acts with an

improper intent, purpose, or motive. See Mock v. T.G. & Y.

Stores Co., 971 F.2d 522, 531 (10th Cir.1992). Bad faith

encompasses fraud, dishonesty, and other intentionally

misleading conduct. See, e.g., Baxter v. United Paperworkers

Int'l Union, Local 7370, 140 F.3d 745, 747 (8th Cir.1998);

Mock, 971 F.2d at 531.

Establishing that the union’s actions were sufficiently

“arbitrary, discriminatory or in bad faith,” is only the first

step toward proving a fair representation claim. Plaintiffs

must then demonstrate a causal connection between the

union’s wrongful conduct and their injuries. See, e.g.,

Ackley v. Western Conference of Teamsters, 958 F.2d 1463,

1472 (9th Cir.1992); Williams v. Romano Bros. Beverage Co.,

939 F.2d 505, 508 (7th Cir.1991).

1. Bad Faith Conduct

The pilots adduce a welter of evidence presented

during the three-week trial to support the jury’s finding

that ALPA acted in bad faith. Essentially, they contend

that the jury could have found that ALPA acted in bad

faith when it: (1) abandoned the principle of seniority

mandated by Section 3-A of the PWA; (2) failed to follow

its own constitution and by-laws by adopting Pan Am’s

training plan without a written decision; (3) entered into

“secret” agreements designed to protect the interests of

the MEC members at the expense of the Spellacy pilots;

(4) made material misrepresentations designed to prevent

the disclosure of the secret agreements; and (5) declined

to represent or assist the pilots in filing and prosecuting

their grievances. We are not persuaded.

Al2

Section 3-A of the PWA provides that:

Seniority shall govern all pilots in case of pro-

motion or demotion, their retention in case of

reduction of force, their assignments or reas-

signments due to expansion or reduction in

force, their choice of vacancies, placement or

replacements, provided that the pilot is suffi-

ciently qualified for the conduct of the operation

to which he is assigned; and, in the event the

pilot is considered by [Pan Am] not to be suffi-

ciently qualified, [Pan Am] shall furnish the

pilot written reasons therefor. Section 3-A shall

apply except where specifically excepted in the

[PWA].

The pilots construe this provision to apply because

either: (1) Section 3-A is the “default” provision and

nothing in the PWA preempts application of its strict

seniority rule; or (2) the transfer of pilots and equipment

to Delta constituted a “reduction in force” within the

meaning of Section 3-A. Thus, their argument runs,

because Pan Am was contractually obligated to offer pilot

training on a strict seniority basis, ALPA breached its

duty of fair representation by concluding that the PWA

did not govern training for transfer to Delta. ALPA

responds that Section 3-A refers only to Pan Am's opera-

tions, and its interpretation that the PWA does not apply

to training pilots for transfer to Delta as part of a paitial

asset sale is, therefore, not unreasonable. Essentially

ALPA’s argument is that its interpretation does not have

to be right. It need only be plausible.

“To uphold the union’s action in interpreting the

contract as it did it is not necessary that we find on the

merits that such an interpretation was correct.” Tedford v.

Al3

Peabody Coal Co., 533 F.2d 952, 957 (5th Cir.1976) (citing

Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842

(1967)). Rather, our inquiry is limited to whether the

union took a position on the basis of an informed, rea-

soned judgment regarding the merits of the pilots’ claim

in light of the language contained in the collective bar-

gaining agreement. See id. (union’s contract interpretation

must be reasonable and “(1) based upon relevant, permis-

sible union factors which (exclude) the possibility of it

being based upon motivations such as personal animosity

or political favoritism; (2) a rational result of the consid-

eration of those factors; and (3) inclusive of a fair and

impartial consideration of the interests of all

employees”); see also, e.g., Bache v. American Tel. & Tel., 840

F.2d 283, 290 (5th Cir.1988).

ALPA’s position that Section 3-A does not apply in

the context of a partial asset sale, while arguably wrong,

is not so unreasonable as to constitute a breach of the

duty of tair representation. Section 3-A does not make

any reference to employee rights in the event of an asset

sale; it merely requires that rights provided in the PWA

be allocated by seniority unless preempted by another

provision of the PWA.

Moreover, while the PWA contained a few provisions

related to asset sales, none provided the rights claimed by

the pilots. Section 35, entitled “Acquisitions and Sales,”

guaranteed the union’s right to negotiate with Pan Am

concerning the effects of an asset sale. Section 1.E pro-

vided special protection to junior pilots who were fur-

loughed because of a sale of routes. Section 1.D required

any successor carrier that might take control of Pan Am

to operate under the PWA, absent an agreement to the

Al4

contrary among the union, Pan Am, and the successor

Car©rrier.,

In light of the PWA provisions specifically defining

the rights and responsibilities of Pan Am and ALPA

during a partial asset sale, ALPA’s decision to accept Pan

Ams view that Section 3-A’s generic seniority provision

applied only to Pan Am’s operations — and not Delta’s -

is not unreasonable. See Flanigan v. (International Bhd. of

Teamsters, Warehousemen & Helpers of Am.) Truck Drivers

Local No. 671, 942 F.2d 824, 827 (2d Cir.1991) (“[uJnion

cannot be taulted for acceding to” employer’s logical

interpretation of seniority provision).

Pan Am’s conduct during earlier asset sales also sup-

ports ALPA’s thesis. See Rupe v. Spector Freight Sys., Inc.,

679 F.2d 685, 693-94 (7th Cir.1982) (union’s interpretation

of seniority provision reasonable when consistent with

employer's previous practices). In 1985, for example,

when Pan Am sold routes to United, Pan Am trained only

those pilots with experience on the planes transferred to

United, not its most senior pilots. In addition, in its 1988

term sheet for the collective bargaining agreement, Pan

Am refused to provide pilots any “assurances” regarding

their treatment in an asset sale; and it refused to accept

any contractual responsibilities that could jeopardize its

ability to complete a transaction.

Moreover, in late 1990, when Pan Am sold its London

Heathrow routes to United, it did not transfer its pilots

solely on the basis of seniority. United agreed to hire

pilots in seniority by category (1.e., captains hired to fill

captain positions; first officers for first officer positions).

As a result, senior captains who sought employment at

Al5

United, and who were qualified to fill first officer posi-

tions, were passed over in favor of junior first officers for

the first officer positions. When ALPA subsequently

sought Pan Am’s agreement to protect senior pilots dur-

ing asset sales, Pan Am again refused to limit its flex-

ibility.

[he pilots’ alternative contention that Pan Am was

required to train pilots for transfer to Delta in order of

seniority because the transfer of assets and pilots consti-

tuted a “reduction in force” within the meaning of Sec-

tion 3-A, is similarly unpersuasive. In the case of a

reduction in force, Section 3-A entitled pilots to “reten-

tion” by Pan Am, not relocation, or training to promote

relocation, to another airline.

[he pilots’ remaining bad faith arguments are with-

out merit. They argue that ALPA and the MEC violated

the union’s constitution and by-laws by allowing Pan Am

to amend the PWA without a written agreement. How-

ever, ALPA’s position that the PWA did not apply to the

adoption of a training program was a reasonable con-

struction. Therefore, ALPA believed that Pan Am could

proceed without reaching a written agreement with

ALPA. Since “ALPA’s interpretation of its governing doc-

uments is not unreasonable[,] by following its own inter-

pretation ALPA did not breach its [duty of fair

representation] in bad faith.” O'Neill v. Air Line Pilots

Assoc., Int'l, 939 F.2d 1199, 1207 (5th Cir.1991); see Baker v

Newspaper & Graphic Communications Union, Local 6, 628

F.2d 156, 166-67 (D.C.Cir.1980).

Al6

ALPA’s decision not to file grievances on behalf of

the effected pilots, or to assist pilots in prosecuting griev-

ances, similarly does not rise to the level of bad faith.

While “a union may not arbitrarily ignore a meritorious

grievance Or process it in perfunctory fashion,” union

members do not have an “absolute right to have [their]

grievances taken to arbitration.” Vaca, 386 U.S. at 191, 87

S.Ct. 903; see Cruz, 34 F.3d at 1153-54; Pyzynski v. New York

Cent. R.R. Co., 421 F.2d 854, 864 (2d Cir.1970).

In this case, ALPA decided that pursuing a grievance

for the senior pilots would be fruitless. It reasoned that

under the PWA, Pan Am was only required to consult

with ALPA regarding the implementation of an appropri-

ate training plan. Thus, prosecuting pilot grievances

would not result in the adoption of a more favorable

training program since the most senior pilots did not

have a contractual right to receive training for transfer to

Delta. This position is reasonable because: (1) ALPA had

unsuccessfully attempted to negotiate contractual restric-

tions on Pan Am’s freedom to arrange employment

opportunities at other carriers; and (2) Pan Am, on two

prior occasions, implemented asset sales involving

employee transfers without permitting ALPA to do more

than comment on the terms. Because ALPA’s decision not

to prosecute pilot grievances was based on a reasonable

interpretation of the PWA, ALPA did not breach its duty

of fair representation. See Chaparro-Febus v. International

Longshoremen Ass'n, Local 1575, 983 F.2d 325, 330 (lst

Cir.1992).

Finally, the pilots contend that ALPA and the MEC

forged “secret” agreements with Pan Am and Delta that

sacrificed the pilots’ rights under the PWA. They assert

Al7

that the “secret” agreements and subsequent misrey

sentations designed to cover their tracks constituted

faith. The pilots rely on Lewis v. Tuscan Dairy Farm:

25 F.3d 1138 (2d Cir.1994), and Aguinaga v. United }

Commercial Workers, 993 F.2d 1463 (10th Cir.1993

reliance is misplaced.

In Lewis and Aguinaga, the unions entered into s:

side-agreements with the employer that vitiated

contractual rights of the employees. However, as

cussed above, the Pan Am pilots had no such

biguous contractual entitlement. Moreov:

employees in Lewis and Aguinaga were trick:

believing that their rights were preserved until it »

late to protest the employer's action. See Lewis, 25

1143; Aguinaga, 993 F.2d at 1471. In contrast, w!

MEC delayed confessing its agreement with Pan An

period of time (or masked that agreement b'

that the arbitrator decided the issue), the delay di

prejudice the pilots. The pilots here knew ALPA’s

tion in time to challenge its decision, were aware t!

Am adopted a training policy contrary to the

cated by senior pilots, and hired attorneys to

ances and organize resistance to Pan Am’s propose

Under these facts, we cannot say that ALPA or ths

acted in bad faith by entering into a deal with |

and Delta regarding the selection of pilots for train

the A-310 and B-727 aircraft. See Ryan v. New York N

paper Printing Pressmen’s Union No. 2, 590 F.2d 451. 4

(2d Cir.1979).

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Immediately after the Bankruptcy Court

sale agreement between Pan Am

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A22

guota, the lack of simulator time, and genuine doubts

ibout whether the long course training could be accom-

plished in time to meet Delta’s firm deadline. Pan Am

ntormed the MEC that, even if the MEC opposed the

hort course plan, Pan Am “would move| | ahead

thout the union’s agreement. In light of Pan Ams

nambiguous intention to proceed with or without the

on’'s blessing, we cannot say that ALPA’s decision not

IV O«

ite a seniority-based training system was the

, +}, — > ,

the pilots injuries

use Wwe onclude that Judge Weinstein correct!

L\LPA’s motion for judgment as a matter of law

weed not address either ALPA’s contention that Judge

tein erred in instructing the jury or the pilots argu

ff anew trial was imprope

A23

In re PAN AMERICAN WORLD AIRWAYS,

INC./DELTA AIR LINES, INC.

PILOT EMPLOYMENT LITIGATION.

Walter B. DUKE, Jr., et al., Plaintiffs,

AIR LINE PILOTS ASSOCIATION, et al., Defendants.

Edward J. SPELLACY, Jr., et al., Plaintiffs,

AIR LINE PILOTS ASSOCIATION, et al., Defendants.

Nos. MDL 963, CV 92-1049, CV 93-0853.

United States District ¢ ourt

E.D. New York

\pril 14, 1997

tt M. Karsten, Sack opector & Barrett, West Hartford

lL, Sigismund Sapinski, Jr Updike, Kelly & Spel

Hartford, CT, for Plaintiff Spellacy

M it I | LITi¢ Ste Dou las I tt i iumMme

Ne York Cj tor P tiff, Duke O

} A ty

| . H etz ma & H f \

M el E. Abrams. Peter Herman, T} (

VeIss & m< Ni « k ( if By.

‘

WEINSTEIN, Senior District ludge

< | ent 7: tot d. +

\4 ] Sues

A24

FACTS

During the terminal days of the then-bankrupt Pan

American Airlines, it sold, under bankruptcy court aegis,

the last of its major air routes and hundreds of its remain-

ing planes, agreeing to furnish enough qualified Pan Am

pilots to fly those planes as Delta employees. Since too

few pilots were qualified, Pan Am agreed to train a

sufficient number to meet Delta’s requirements.

rhe local Airline Pilots Association Negotiating Com-

mittee had to make a series of decisions in cooperation

with Pan Am on who would be trained. As a result of

their determinations, those on the committee, together

with hundreds of other pilots, were able to obtain

employment with Delta as qualified pilots. Scores of

other Pan Am pilots were denied that opportunity

because they were not given the necessary training.

PROCEDURAL HISTORY

Pilots who were unable to obtain employment by

Delta brought a number of suits. They were concentrated

in the Eastern District of New York by the Multidistrict

Panel.

Some pilots sued Delta Airlines. Their complaints

were dismissed because Delta did not decide which Pan

Am pilots were to be trained.

[hree groups of pilots sued the Air Line Pilots Asso-

ciation (“ALPA”) on the ground that they had been dis-

criminated against by ALPA and that, under the Railway

Labor Act, 45 U.S.C. §§ 151 et. seq., 181 et. seq., they had

A25

a right to damages. The groups were denominated at the

trial as Duke 1, Duke 2 and Spellacy plaintiffs.

The case was bifurcated. Tried at one time were al]

three groups’ claims on the issue of liability. The jury

found for almost all plaintiffs.

Following motions to set aside the \ erdicts, the court

suggested that a mediator attempt to resolve differences

among the parties. With the assistance of the mediator

the Honorable Milton Mollen, the Duke 1 and Duke 2

plaintiffs settled with ALPA. Their claims have been dis-

missed as moot.

DISMISSAL

[he issue now is whether defendants’ motion to dis-

miss or, in the alternative to provide a new trial, should

be granted. It is with great renitence that a trial judge

approaches a motion to ignore the decision of a well-

instructed, well-advised, capable jury. The Spellacy plain-

tiffs’ case should, however, be dismissed for at least three

reasons:

First, insofar as the Spellacy plaintiffs are concerned,

the pilots’ collective bargaining agreement with Pan Am

which called for training on a seniority basis for opera-

tions of Pan Am - was not applicable to the subsequent

Delta-Pan Am agreement entered into with the approval

of the bankruptcy court to sell aircraft to Delta and to

furnish trained pilots. The Delta-Pan Am agreement did

not call for the kind of Pan Am operational decisions

covered by the ALPA-Pan Am agreement. As a matter of

law, the straight seniority system did not apply to the

A26

Spellacy plaintiffs. Bankrupt, Pan Am was permitted to

minimize training costs to itself by departing from strict

seniority in a reasonable way in training pilots for trans-

fer to Delta.

Second, the training program as devised and exe-

cuted constituted a reasonable balancing of seniority and

cost factors by those in charge of the process during a

stressful period for everyone: the pilots, Pan Am, the

bankruptcy authorities and creditors. A large number of

pilots had to be retrained or requalified during a short

period while Pan Am continued to operate.

Third, the jury’s failure to draw a line somewhere

reasonable in the Spellacy seniority list indicated that,

despite its high quality, it was swayed by prejudice

against the ALPA representatives because they ended up,

as a result of their decisions, as Delta employees.

EQUITY

There is no basis in equity for an order either requir-

ing some form of reinstatement of the Spellacy plaintiffs

to positions held before the sale of Pan Am’s aircraft to

Delta or to those which they might obtain at Delta now. It

would be impossible to restore the status quo ante. Any

equitable causes, implied or explicit, in the complaint and

at trial are decided against the Spellacy plaintiffs for the

same reasons that the jury verdict cannot stand. See Fed-

eral Rules of Civil Procedure, Rule 52(a).

A27

CONCLUSION

This decision covers all remaining aspects of the

MDL case. Final judgment for defendant is now entered

in these, the remaining open cases. No costs or disburse-

ments.

SO ORDERED.

A28

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

CAROLYN CLARK CAMPBELL

CLERK

(Filed Oct. 13, 1998)

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on

the ninth day of October one thousand nine hundred and

ninety-eight.

Edward J. Spellacy, Jr., and Stewart W. Beckett, Jr.,

Plaintiffs-Appellants,

V. Dkt No: 97-7666

Airline Pilots Association-International and J. Randolph

Babbitt, III,

Defendants-Appellees.

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by the

appellants Edward J. Spellacy, Jr., and Stewart W. Beckett,

ae.

Upon consideration by the panel that decided

the appeal, it is Ordered that said petition for

rehearing is DENIED.

A229

lt is further noted that the suggestion

for rehearing in

banc has been transmitted to the jr

idges for the court in

regular active service and to any other judge that heard

the appeal and that no such judge has requested that

vOte be taken thereon

FOR THE COURT

By S/ Beth ] Meador

Beth J. Meader

Federal Rules of Civil Procedure

Rule 20. Permissive Joinder of Parties

plaintiffs if they assert any right to relief jointly

r in the alternative in respect Of or arising ot

rine i tio! rccurrence rr series of trans

ri 1 if any question of law or fact

{ i the persons will r1iSé NM tne action 1

na eSSé rgo or other property subject

ty proce in rem) may be joined in one actior

ni r tnere serted against them joint

I tne ternative iny right to relief

I ut f the same t1 il iction, ¢ ]

r se f tral tio! r occurrence ind if ar

r fact common to all defendants \

plaintiff or defendant need not be

I { ; I defer ling ivdall { | the ré Tt

: ent 7 y He eT tryy ' rT ré

A3]

Rule 50. Judgment as a Matter of Law in Actions Tried

by Jury; Alternative Motion for New Tria!

Conditional Rulings

(a) Judgment as a matter of law.

(1) If during a trial by jury a party has

been fully heard with respect to an issue a)

there is no legally sufficient evidentiary bas

for a reasonable jury to have found for that

party with respect to that issue, the court ma\

grant a motion for judgment as a matter of law

against that party on any claim, counterclain

cross-claim, or third party claim that canr

under the controlling law be maintained wit!

out a favorable finding on that issue.

(2) Motions for judgment as a matter

law may be made at any time before submissi

of the case to the jury. Such a motion sha

specify the judgment sought and the law ar

the facts on which the moving party is entitle

to the judgment.

(b) Renewal of Motion for Judgment After Tria

Alternative Motion for New Trial. Whenever a rr

for a judgment as a matter of law made at the clos:

the evidence is denied or for any reason is not grant

the court is deemed to have submitted the action t.

jury subject to a later determination of the legal questi

raised by the motion. Such a motion may be renewed |

service and filing not later than 10 days after entr\

judgment. A motion for a new trial under Rule 59 ma,

joined with a renewal of the motion for judgment as

matter of law, or a new trial may be requested in

alternative. If a verdict was returned, the court ma\

disposing of the renewed motion, allow the judgms

A32

stand or may reopen the judgment and either order a new

trial or direct the entry of judgment as a matter of law. If

no verdict was returned, the court may, in disposing of

the renewed motion, direct the entry of judgment as a

matter of law or may order a new trial.

(c)

Same: Conditional Rulings on Grant of Motion

for Judgment as a Matter of Law.

(1) If the renewed motion for judgment as

a matter of law is granted, the court shall also

rule on the motion for a new trial, if any, by

determining whether it should be granted if the

judgment is thereafter vacated or reversed, and

shall specify the grounds for granting or deny-

ing the motion for the new trial. If the motion

for a new trial is thus conditionally granted, the

order thereon does not affect the finality of the

judgment. In case the motion for a new trial has

been conditionally granted and the judgment is

reversed on appeal, the new trial shall proceed

unless the appellate court has otherwise

ordered. In case the motion for a new trial has

been conditionally denied, the appellee on

appeal may assert error in that denial; and if the

judgment is reversed on appeal, subsequent

proceedings shall be in accordance with the

order of the appellate court.

(2) The party against whom judgment as a

matter of law has been rendered may serve a

motion for a new trial pursuant to Rule 59 not

later than 10 days after entry of the judgment.

(d)

Same: Denial of Motion for Judgment as a

Matter of Law. If the motion for judgment as a matter of

law is denied, the party who prevailed on that motion

may, as appellee, assert grounds entitling the party to a

nts NN tN

Bruce P. Murphy v ,

David L. Nelsor /

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.