C. Additional Remedy: Award Plaintiffs attorneys’ fees and expenses pursuant to common benefit doctrine.
Whether the Court applies Plaintiffs’ first or second proposed remedy, it should also award Plaintiffs the attorneys’ fees and other expenses that they reasonably incurred protecting the DFR rights of all USAPA members. Courts make such awards where litigation confers “a substantial benefit on the members of an ascertainable class, and . . . the court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them.” See Mills v. Electric Auto- Lite Co., 396 U.S. 375, 393-394 (1970). This applies where a worker successfully sues a union, “because to allow the others to obtain full benefit from the plaintiff’s efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff's expense.” Hall v. Cole, 412 U.S. 1, 5-6 (1973) (internal quotation and alteration marks omitted). In such matters, the union rank-and-file is regarded as “the class that has benefited from [the litigation].” Id. at 8-9. Such fee shifting is mandatory in DFR cases. Harrison v. United Transp. Union, 530 F.2d 558, 564 (4th Cir. 1975), for example, found error where the district court denied a fee award in successful DFR litigation.
Because all pilots have an interest in seeing USAPA abide by its DFR, the entire craft (USAPA members and non-members) benefitted from this litigation. Had Plaintiffs not filed Addington I in 2008, defended in Addington II in 2010, and filed this action in 2013, USAPA could now be shielded by the six-month limitations on DFR claims. Each of these three actions, therefore, is a phase of one course of litigation intended to defend the Nicolau Award. The West Pilots are entitled to a common benefit award for that entire course—from 2008 to the present. The Court, therefore, should include with the remedies addressed above an order awarding reasonable fees and other litigation expenses to Plaintiffs and directing them to submit an application pursuant to L.R.Civ. 54.2.
III. Conclusion
Plaintiffs propose two alternative remedies for USAPA’s DFR breach: (1) order USAPA to use the Nicolau Award in the MOU seniority integration process; or (2) order USAPA to have East and West pilot representatives submit to a neutral arbitrator whether the Nicolau Award list or a strict date-of hire list should be used in that process. Either way, the Court should also award fees and expenses to Plaintiffs pursuant to common benefit doctrine.
Dated this 17th day of May, 2013.
