The following is taken from the Federal Distric Court in North Carolina in Breeger v. USAPA.
II. DISCUSSION
Under Fed. R. Civ. P. 12(B)(1), the existence of subject matter jurisdiction is a threshold
issue. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 96 (1998). Accord Jones v. American
Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999); and Evans v. B.F. Perkins Co., 166 F.3d642, 647 (4th Cir. 1999). The party seeking federal jurisdiction in this case, the Plaintiffs, have the burden of proving that subject matter jurisdiction exists. Richmond, Fredericksburg & Potomac R.Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
In considering a motion to dismiss pursuant to Rule 12(B)(1), a court should “regard the
pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.†Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (internal citation omitted). The moving party’s motion to dismiss should be granted when “the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.†Id. (internal citation omitted).
Federal courts may adjudicate “only actual ongoing cases or controversies.†Lewis v.
Continental Bank Corp., 494 U.S. 472, 477 (1990). As a result, federal courts may not entertain
actions that are not yet ripe. Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967).
The Supreme Court has established a two part test for determining ripeness, by deciding:
(1) whether the issues are fit for judicial decision, and (2) whether hardship will fall to the
petitioning party on withholding court consideration.†Static Control Components, Inc. v. DarkprintImaging, Inc., 135 F. Supp. 2d 722, 732 (M.D.N.C. 2001) , citing Abbott Laboratories, 387 U.S. at148-49. “An issue is not fit for review if it rests upon contingent future events that may not occuras anticipated, or indeed may not occur at all.†Retail Indus. Leaders Ass’n v. Fielder, 475 F.3d 180,188 (4th Cir. 2007), citing Texas v. United States, 523 U.S. 296, 300 (1998).
Concerning the ripeness of a DFR claim, the Supreme Court has recognized that the “final
product of the bargaining process may constitute evidence of a breach of duty [of fair
representation].†Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991) (emphasis added). The
parties have not cited, and the undersigned is unaware of, any published federal authority addressing whether a union’s conduct may give rise to a ripe DFR claim prior to the conclusion of negotiations with the employer.2
That's the North Carolina court quoting the Supreme Court. That's where the ripeness issue came from.
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Ripeness doctrine from another Federal District court of which usapa was Tried and Convicted of DFR. Better known as Judge Neil. V Wake's court room.
1. Ripeness Doctrine
Two factors govern the inquiry into whether a case is ripe: “the fitness of the
issues for judicial decision,†and “the hardship to the parties of withholding court
consideration.†Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433
F.3d 1199, 1211-12 (9th Cir. 2006). Both factors favor jurisdiction here.
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. See id. at 1212 (noting that ripeness hinges on “the precise legal
question to be answeredâ€). The jury answered the first question in the affirmative. A
ruling on relief need not wait for further facts to eventuate themselves. Plaintiffs’ case
Case 2:08-cv-01633-NVW Document 593 Filed 07/17/2009 Page 39 of 53
does not rest upon “contingent future events that may not occur as anticipated, or indeed
may not occur at all.†Cardenas v. Anzai, 311 F.3d 929, 934 (9th Cir. 2002) (quoting
Texas v. United States, 523 U.S. 296, 300 (1998)). USAPA concedes that it will never
bargain for implementation of the Nicolau Award. [Doc. # 574 at 1047.] 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, including the Airline. The prospect of a single new CBA holds
significant economic consequences for all US Airways pilots, whose wages, working
conditions, furloughs, and demotions are on the line. In addition to depriving West Pilots
of legitimate representation, USAPA’s bargaining position leaves the Airline to decide
between a lack of a single CBA and an unlawful single CBA.
2. Remedial Concerns
The practicalities of the remedy also support ripeness. As discussed further on,
effective relief is available in the form of an injunction requiring USAPA to negotiate for
the implementation of the Nicolau Award, which the Airline has already accepted. Even
if a CBA were in place, relief could only set aside that agreement and restore the union’s
proper negotiating position—it could not impose a permanent new CBA term. H. K.
Porter Co., Inc. v. NLRB, 397 U.S. 99, 107-09 (1970) (forbidding NLRB from
prescribing terms of CBA); Hyatt Mgmt. Corp. of N.Y. v. NLRB, 817 F.2d 140, 143 (D.C.
Cir. 1987) (noting that the rule also applies to the courts); see also Bernard v. Air Line
Pilots Ass’n, Int’l, 873 F.2d 213, 215, 217-18 (9th Cir. 1989) (affirming injunction that
set aside “tainted†agreement, established a temporary seniority system, and required
union adherence to ALPA merger policy as a new seniority bargaining position). To
withhold relief until the conclusion of corrupted negotiations would accomplish nothing
but delay—a hardship to all parties.
3. Limitations Cases
Cases from the limitations context confirm that the claim is ripe. Claims are ripe,
at the latest, when the statute of limitations begins to run. See, e.g., Norco Const., Inc. v.
King County, 801 F.2d 1143, 1146 (9th Cir. 1986); Hensley v. City of Columbus, 557 F.3d
693, 696 (6th Cir. 2009). The statute of limitations runs on fair representation claims
from the time that the asserted injury becomes “fixed and reasonably certain.†Archer v.
Airline Pilots Ass’n Int’l, 609 F.2d 934, 937 (9th Cir. 1979). The West Pilots’ asserted
injury was “fixed and reasonably certain†as of the time that USAPA presented its
seniority proposal to the Airline for improper purposes, abdicating its responsibility to
negotiate on behalf of both groups impartially and in good faith.
Ramey undergirds this conclusion. Ramey held that a union’s unequivocal
announcement of an intent to breach its duty would only give rise to a ripe claim in
limited circumstances. 378 F.3d 269, 278-79 & n.4 (2d Cir. 2004). However, a claim
does accrue when the union acts on that intention by presenting its seniority proposal to
the company, before the conclusion of a CBA. Id. at 279-80. Though the facts of Ramey
and this case are not identical, the analytical framework is apt.
The duty of fair representation owed by a union to its
members is similar to a contractual duty, and the union’s
announcement of its intent to advocate against its members’ interests
may be compared to a party’s anticipatory repudiation of a
contractual duty. In some anticipatory repudiation cases the
aggrieved party may sue immediately after the repudiation is
announced. However, the statute of limitations ordinarily does not
begin to run, and the cause of action does not accrue, until the date of
the actual breach; that is, until the date on which performance is due.
. . . Applying this principle to the case at bar, the cause of action
accrued on the date on which performance was due, namely the date
on which [the union] advocated a position on the seniority issue to
USAir.
Id. USAPA points out that at the time that the Ramey plaintiffs happened to sue, the
union had already reached agreement with the airline on seniority integration. This
contention misses the point. The above language makes clear that the Ramey plaintiffs’
claim accrued prior to the execution of the agreement. The same circumstances are
present here. USAPA has made plain its intent never to bargain for the Nicolau Award,
and it has advocated its date-of-hire seniority proposal to the company.
4. Other Authority
USAPA has cited no precedential authority for dismissing a fair representation
claim on ripeness grounds. Indeed, USAPA has cited no federal appellate authority
discussing ripeness in the labor context. Perhaps such cases are scarce because the
typical inquiry in a fair representation suit is whether a union’s past action violated its
duty of fair representation—a question ripe by definition. Such was the inquiry in this
case, and so it does not raise paradigmatic ripeness concerns of record development or
temporal standing. Plaintiffs sought and obtained an adjudication of past and present
union action.
USAPA has repeatedly suggested that only the “final product of the bargaining
process†is subject to fair representation claims, citing Air Line Pilots Association v.
O’Neill, 499 U.S. 65, 78 (1991). [E.g., doc. # 36 at 13.] This phrase, carefully plucked
from its context, is too slender a reed to support such an elephantine proposition.
O’Neill’s statement that “the final product of the bargaining process may constitute
evidence of a breach of duty†was not directed at ripeness, but rather at the “arbitrarinessâ€
standard of reviewing union actions. Reuniting the phrase with the rest of the quoted
sentence makes its meaning clear: “[T]he final product of the bargaining process may
constitute evidence of a breach of duty only if it can be fairly characterized as so far
outside a ‘wide range of reasonableness,’ that it is wholly ‘irrational’ or ‘arbitrary.’†Id.
(citation omitted).
O’Neill did not concern the accrual of fair representation claims. It simply held
that the union’s duty of fair representation, including the arbitrary–discriminatory–bad
faith framework, “applies to all union activity, including contract negotiation.†Id. at 67;
see also Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 324, 329 (1969). Nothing in O’Neill
prevents the imposition of liability for negotiating activities prior to the conclusion of a
CBA. Rather, the case suggests that the liability may arise sooner because the agreement
is only considered as “evidence†of a breach rather than the breach itself. O’Neill’s
application of the duty of fair representation to “contract negotiation†underscores this
conclusion. 499 U.S. at 67.
It may be the rare case where a redressable fair representation claim accrues in the
midst of labor negotiations, which are usually dynamic and uncertain, but it happened
here. In USAPA’s hands, the Nicolau Award’s time of death has passed; only the time of
the funeral is uncertain. The Transition Agreement resolved the union’s internal seniority
conflict by way of the Nicolau Award, which USAPA wholly abandons solely to benefit
one group of pilots over another. Indeed, this particular breach of the duty implicates
both negotiation and administration of collective bargaining agreements. See id. at 77
(doubting that “that a bright line could be drawn between contract administration and
contract negotiation†in every case).
Another district court, considering a suit by a different set of pilots against
USAPA, has accepted USAPA’s ripeness argument. See Breeger v. USAPA, No. 08-CV-
490, 2009 WL 1328902, 2009 U.S. Dist. LEXIS 40489 (W.D.N.C. May 12, 2009). In
Breeger, certain East Pilots brought a fair representation suit against USAPA, alleging
that USAPA failed to meet a constitutional obligation to reshuffle East Pilot seniority
positions established by prior mergers. The district court adopted a Magistrate Judge’s
Report and Recommendation, dismissing the case in reliance on O’Neill as well as a
selection of unpublished federal decisions and state cases. The Report states, “The parties
have not cited, and the undersigned is unaware of, any published federal authority
addressing whether a union’s conduct may give rise to a ripe [fair representation] claim
prior to the conclusion of negotiations with the employer.†It does not address the context
of O’Neill’s “final product of the bargaining process†language. It makes no mention of
Ramey, which was not presented to the court in any brief. The holding of United
Independent Flight Officers, Inc. v. United Air Lines, Inc.
