A. Likelihood of Success on the Merits
USAPA has not made a strong showing of likely success on the merits. This Court based its jury instructions and equitable judgment upon an established and essentially harmonious line of fair representation liability cases spanning several circuits, including this one. [Doc. # 593.] Similarly, USAPA’s jurisdictional challenges have clashed with the express holdings of published federal appellate decisions. [Doc. # 593, at 35-42.] This is not an instance where this Court was forced to choose between two lines of irreconcilable precedent, or where courts have expressed doubt about the continuing viability of existing precedent. The court of appeals remains free to revisit its own analysis and to disagree with the analysis of other lower courts, including this one, but that freedom does not connote a likelihood of success for USAPA.
B. Hardship to Parties
USAPA has failed to show that any hardship would result to it from enforcing the injunction during the appeal. The main purposes of the injunction are to prevent USAPA from negotiating a collective bargaining agreement (“CBAâ€) that does not include the Nicolau Award, and to prevent USAPA from negotiating separate CBAs for the two pilot
groups. USAPA failed at trial to show any legitimate connection between the negotiation of seniority rights and the negotiation of other economic terms for the pilot groups as a whole. US Airways has already agreed to accept the Nicolau Award and shows no opposition to it.
The balance of hardships does not tip in favor of USAPA, sharply or otherwise. See Golden Gate Restaurant Ass’n v. City of San Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008).
IT IS THEREFORE ORDERED THAT Defendant USAPA’s Motion to Suspend
and Stay Permanent Injunction [doc. # 596] is denied.
DATED this 27th day of August, 2009.