Sure, any judge could have and still could presume to be omniscient about all the upcoming contingencies and then base their ruling on what they know will come about, whether or not there is a precedent. Touché.
Indeed one could rationally posit that the SCOTUS held that contingencies are well understood to preclude ripeness, and didn't bother wasting their time duplicating what is already known.
Bybee said this in his dissent:
This is an unusual case and, in my view, an exception to the general rule that we evaluate the duty of fair representation based on the fairness of the actual representation as memorialized in the Collective Bargaining Agreement (“CBA&rdquo😉. Here, the absence of a CBA is itself powerful evidence of a DFR violation.
As the district court found, “USAPA’s sole objective in adopting and presenting its seniority proposal to the Airline was to benefit East Pilots at the expense of West Pilots, rather than to benefit the bargaining union as a whole.” Thus, “the terms of USAPA’s seniority proposal are substantially less favorable to West Pilots than the Nicolau Award” made through binding arbitration, an award that “USAPA concedes that it will never bargain for.”
The issues are concrete and were well developed in district court proceedings that included a jury trial (for damages) and a bench trial (for equitable relief). I would hold the case is ripe for decision and decide the appeal on the merits.
What our decision in Yahoo! and the Court’s decisions in Monsanto and Thomas make clear is that ripeness is a contextual and commonsense doctrine. If the unique circumstances of a particular claim render it fit for decision, the claim is ripe. I submit that this is a case in which “[n]othing would be gained by postponing a decision, and the [parties’] interest would be well served by a prompt resolution of” the West Pilots’ DFR claim.
We employ a two-part test to determine whether a claim is ripe for review, evaluating “(1) whether the issues are fit for judicial decision, and (2) whether the parties will suffer hardship if we decline to consider the issues.” San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1132 (9th Cir. 2006). The issues raised by the West Pilots’ DFR claim are straightforward, and the uncontested facts of this case make clear that the issues involved are fit for decision on this record.
The West Pilots’ DFR theory does not depend on any contingent future events such as the memorialization of a finalized CBA or seniority integration agreement. The district court explained why the issues were fit for decision and the parties will suffer hardship if we decline to consider the issues:
The issues fit for decision are these: Whether USAPA adopted and presented its seniority proposal without any legitimate union objective, solely to benefit East Pilots at the expense of West Pilots, and if so whether the West Pilots are entitled to damages and an injunction therefor . . . . USAPA concedes it will never bargain for implementation of the Nicolau Award. It is constitutionally hostile to doing so. The
Airline has accepted the Nicolau Award, expressing no opposition to it, and the union has failed to show any legitimate reason (or plausible future reason) for abandoning it. Liability flows from the process and aims of USAPA’s seniority position. The outcome of negotiations is irrelevant. Without an injunction, USAPA’s seniority position inevitably impairs the collective bargaining process. For this same reason, denying judicial review would work a substantial hardship upon the parties.
Perhaps another district or circuit court would hold to this dissenting viewpoint so long as they are outside of the Ninth circuit's jurisdiction.
