FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DON ADDINGTON, individual
resident of the State of Arizona
formerly employed by America
West Airlines, Inc. and presently
employed by its successor after
merger, US Airways, Inc.; JOHN
BOSTIC, individual resident of the
State of Arizona formerly
employed by America West
Airlines, Inc. and presently
employed by its successor after
merger, US Airways, Inc.; MARK
BURMAN, individual resident of the
State of Arizona, formerly
employed by America West
Airlines, Inc. and presently
employed by its successor after
merger, US Airways, Inc.; AFSHIN
IRANPOUR, individual resident of
the State of Arizona, formerly
employed by America West
Airlines, Inc. and presently
employed by its successor after
merger, US Airways, Inc.; ROGER
VELEZ, individual resident of the
State of Arizona, formerly
employed by America West
Airlines, Inc. and presently
employed by its successor after
merger, US Airways, Inc.;
7997
7998 ADDINGTON v. US AIRLINE PILOTS ASSOC.
STEVE WARGOCKI, individual
resident of the State of Arizona,
formerly employed by America
West Airlines, Inc. and presently
employed by its successor after
merger, US Airways, Inc.,
Plaintiffs-Appellees,
v.
US AIRLINE PILOTS ASSOCIATION, an No. 09-16564
unincorporated association
representing the pilots in the DC No.
CV 08-1633 NVW
employment of US Airways Inc., a OPINION
Delaware corporation,
Defendant-Appellant,
and
US AIRWAYS, INC., a Delaware
corporation; STEPHAN BRADFORD;
ROBERT DAVISON; DOUGLAS L.
MOWERY,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
December 8, 2009—San Francisco, California
Filed June 4, 2010
Before: A. Wallace Tashima, Susan P. Graber, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Bybee
8000 ADDINGTON v. US AIRLINE PILOTS ASSOC.
COUNSEL
Andrew S. Jacob, Polsinelli Shughart, PC, Phoenix, Arizona,
for the plaintiffs-appellees.
Lee Seham, Seham, Seham, Meltz & Petersen, LLP, White
Plains, New York, for the defendant-appellant.
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8001
OPINION
TASHIMA, Circuit Judge:
This case arose out of a bitter seniority dispute precipitated
by the merger of US Airways, Inc., and America West Air-
lines (“AWA”). Following the merger, the companies’ respec-
tive seniority lists had to be integrated to create a single list
for the merged airline. The US Airways, Inc., pilots (“East
Pilots”) and the AWA pilots (“West Pilots”), who were both
represented by the Air Line Pilots Association (“ALPA”),
began exploring methods of integration pursuant to ALPA’s
policy regarding mergers. The East Pilots generally had been
hired earlier and favored a strict date-of-hire system, while the
West Pilots sought a seniority system that would take into
consideration the relative pre-merger strength of their airline
over US Airways, Inc. Ultimately, the union submitted the
internal dispute to arbitration.
Although it is common for a merger to raise the issue of
integrating seniority lists, this case contains an added wrinkle.
The East Pilots, who were dissatisfied with the seniority inte-
gration proposal ALPA arrived at through the union’s internal
arbitration, led a successful effort to decertify ALPA and
replace it with a new union, US Airline Pilots Association
(“USAPA”). Headed by an East Pilot, USAPA was constitu-
tionally committed to pursuing date-of-hire principles, in con-
trast to ALPA, whose merger policy committed it to pursuing
the arbitrated seniority list.
Certain West Pilots brought this action against the newly-
certified union alleging that USAPA breached its duty of fair
representation (“DFR”) by negotiating a contract that would
impermissibly favor the East Pilots at the expense of the West
Pilots. A jury found that the union had breached its DFR, and
the district court, after a bench trial on the remaining equita-
ble issues, granted the West Pilot Plaintiffs an injunction
against USAPA. Addington v. US Airline Pilots Ass’n, 2009
8002 ADDINGTON v. US AIRLINE PILOTS ASSOC.
WL 2169164 (D. Ariz. July 17, 2009). USAPA contends,
inter alia, that the district court never had jurisdiction because
the West Pilots’ claim is not ripe. We agree.
BACKGROUND
In 2005, US Airways, Inc., and AWA merged to form a
single carrier called US Airways (or the “airline”). At the time
of the merger, ALPA was the collective bargaining represen-
tative for both the East Pilots and the West Pilots. Each group
had a separate collective bargaining agreement (“CBA”)
which was administered by each group’s Master Executive
Council. As with most mergers, an integrated seniority list
had to be created. The East Pilots were the bigger group —
about 5,100, compared to about 1,900 West Pilots — and
were generally hired before the West Pilots. The West Pilots
received more favorable wages under their CBA and, unlike
the East Pilots, no West Pilots were furloughed at the time of
the merger.
The two merging airlines and ALPA entered into a Transi-
tion Agreement (“TA”), which incorporated by reference
ALPA’s Merger Policy. Under the TA, the carriers agreed not
to object to ALPA’s seniority integration proposal, provided
it did not result in certain additional costs. The seniority inte-
gration proposal could be implemented only as part of a single
CBA. The single CBA would require approval by the East
Master Executive Council, the West Master Executive Coun-
cil, and a majority of each of the East and West pilot groups,
effectively giving each side a veto. Until the single CBA was
negotiated, with few exceptions, the TA placed a “fence”
between East and West operations, such that each would con-
tinue to operate under its respective CBA.
Pursuant to the ALPA Merger Policy, the two pilot groups
began negotiating seniority integration, but to no avail. Under
the union’s Merger Policy, if negotiation and mediation
between the two sides fail, the issue is submitted to “final and
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8003
binding” arbitration. The merged seniority list is then pres-
ented to the airline, and ALPA is to “use all reasonable means
at its disposal to compel the company to accept and imple-
ment the merged seniority list.” The arbitrated list is not sub-
ject to a separate ratification vote, but becomes part of the
single CBA, which is subject to member ratification.
George Nicolau was selected to chair the arbitration panel,
pursuant to the Merger Policy. Arbitration commenced
between “the US Airways Pilot Merger Representatives and
the America West Pilot Merger Representatives.” In early
May 2007, the panel issued its award (the “Nicolau Award”).
A majority of East Pilots “strenuously objected” to the
Nicolau Award and opposed its implementation. The East
Pilot representatives sought to have ALPA prevent implemen-
tation of the Nicolau Award. ALPA unsuccessfully attempted
to get the two sides to reach a compromise.
While the arbitration was pending, negotiations with the
airline progressed, and the airline proposed a comprehensive
CBA in May 2007. In late July 2007, the East Master Execu-
tive Council determined that the East Pilots would never rat-
ify a CBA that incorporated the Nicolau Award. On August
15, 2007, the East Pilots withdrew their representatives from
the committee negotiating the new CBA with the airline, halt-
ing those negotiations. In late 2007, ALPA submitted the
Nicolau Award to the airline, which accepted the award on
December 20, 2007.
In the meantime, several East Pilots began exploring the
possibility of forming a new union that would not implement
the Nicolau Award. They formed USAPA and, on November
29, 2007, the National Mediation Board certified a representa-
tion election. USAPA won the election and was certified as
the collective bargaining representative for the entire group of
pilots, East and West, on April 18, 2008. From the date the
East Pilots withdrew from negotiations until ALPA was
decertified, there were no further negotiations with the airline.
8004 ADDINGTON v. US AIRLINE PILOTS ASSOC.
USAPA adopted a constitution that established an “objec-
tive” of “maintain[ing] uniform principles of seniority based
on date of hire and the perpetuation thereof, with reasonable
conditions and restrictions to preserve each pilot’s un-merged
career expectations.” Under USAPA’s constitution, ratifica-
tion requires a majority vote of the entire union membership,
such that each pilot group no longer has its own veto power.
Five months after certification, USAPA presented a senior-
ity proposal to the airline. The proposal incorporated date-of-
hire principles. Although the proposal contained some protec-
tions for West Pilots, it was not nearly as favorable to West
Pilots as the Nicolau Award. The airline had not yet
responded to the proposal when the district court entered its
permanent injunction.
The airline has been forced to reduce flying because of eco-
nomic considerations. The reductions have mostly hit the
western operations. Because of the continuing separate opera-
tions, approximately 175 of the 300 furloughs the airline had
announced by the time of trial were West Pilots. At the time
of trial, 140 West Pilots had been furloughed. Under a single
CBA incorporating the Nicolau Award, none of the West
Pilots would have been furloughed.
Six individual West Pilot-Plaintiffs (“Plaintiffs”) filed this
hybrid action against USAPA and US Airways, seeking dam-
ages and injunctive relief. The district court dismissed the
claims against the airline because the System Board of
Adjustment had exclusive jurisdiction over them. Addington
v. US Airlines Pilots Ass’n, 588 F. Supp. 2d 1051, 1064 (D.
Ariz. 2008). Plaintiffs amended their complaint in the surviv-
ing DFR action, specifying that the claim was brought on
behalf of similarly situated West Pilots. The district court cer-
tified a class of West Pilots and set a bifurcated trial schedule.
After a jury trial on liability, the jury found that USAPA had
violated the DFR because it abandoned the Nicolau Award in
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8005
favor of a date-of-hire list solely to benefit the East Pilots at
the expense of the West Pilots.
After a bench trial on remedy, the district court ordered
injunctive relief, permanently enjoining and ordering USAPA
to (1) “Immediately, and in good faith, make all reasonable
efforts to negotiate and implement a single [CBA] with US
Airways that will implement the Nicolau Award seniority pro-
posal . . .”; (2) “Make all reasonable efforts to support and
defend the seniority rights provided by or arising from the
Nicolau Award in negotiations with US Airways”; and (3)
“Not negotiate for separate [CBAs] for the separate pilot
groups . . . .” The district court denied USAPA’s post-trial
motions for judgment as a matter of law and for a new trial.
USAPA timely appealed, and this court granted USAPA’s
unopposed motion to expedite this appeal.
DISCUSSION
[1] Although considerable time, effort, and expense have
been devoted to the merits of Plaintiffs’ DFR claim before
both this Court and the district court, we are without jurisdic-
tion to address the merits of the claim unless it is ripe. See S.
Pac. Transp. Co. v. City of L.A., 922 F.2d 498, 502 (9th Cir.
1990). We review ripeness de novo. See Manufactured Home
Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1025 (9th Cir.
2005); Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1084
(9th Cir. 2003). If the claim before us is not ripe, we must dis-
miss. See S. Pac. Transp., 922 F.2d at 502.
[2] No published case has expressly addressed when a
DFR claim based on a union’s negotiation of a CBA becomes
ripe. Thus, we apply the general principles underlying the
ripeness doctrine and take guidance from our decisions
regarding the related issue of when a DFR claim accrues for
statute of limitations purposes in the context of the adminis-
tration of a CBA. We conclude that Plaintiffs’ DFR claim is
not yet ripe.
8006 ADDINGTON v. US AIRLINE PILOTS ASSOC.
[3] The ripeness doctrine rests, in part, on the Article III
requirement that federal courts decide only cases and contro-
versies and in part on prudential concerns. See Maldonado v.
Morales, 556 F.3d 1037, 1044 (9th Cir. 2009), cert. denied,
130 S. Ct. 1139 (2010); W. Oil & Gas Ass’n v. Sonoma
County, 905 F.2d 1287, 1290 (9th Cir. 1990). The ripeness
inquiry is “intended to ‘prevent the courts, through avoidance
of premature adjudication, from entangling themselves in
abstract disagreements.’ ” Maldonado, 556 F.3d at 1044
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967),
overruled on other grounds by Califano v. Sanders, 430 U.S.
99 (1977)). To determine whether a case is ripe, “we consider
two factors: ‘the fitness of the issues for judicial decision,’
and ‘the hardship to the parties of withholding court consider-
ation.’ ” Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1211-12 (9th Cir. 2006) (en
banc) (per curiam) (quoting Abbott Labs., 387 U.S. at 149).
Both factors militate in favor of finding this claim premature.
[4] A question is fit for decision when it can be decided
without considering “contingent future events that may or
may not occur as anticipated, or indeed may not occur at all.”
Cardenas v. Anzai, 311 F.3d 929, 934 (9th Cir. 2002) (inter-
nal quotation marks omitted); see also United States v.
Streich, 560 F.3d 926, 931 (9th Cir.), cert. denied, 130 S. Ct.
320 (2009). “At the same time, a litigant need not ‘await the
consummation of threatened injury to obtain preventive relief.
If the injury is certainly impending, that is enough.’ ” Id.
(quoting 18 Unnamed “John Smith” Prisoners v. Meese, 871
F.2d 881, 883 (9th Cir. 1989) (emphasis in Streich)).
[5] We conclude that this case presents contingencies that
could prevent effectuation of USAPA’s proposal and the
accompanying injury. At this point, neither the West Pilots
nor USAPA can be certain what seniority proposal ultimately
will be acceptable to both USAPA and the airline as part of
a final CBA. Likewise, it is not certain whether that proposal
will be ratified by the USAPA membership as part of a new,
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8007
single CBA. Not until the airline responds to the proposal, the
parties complete negotiations, and the membership ratifies the
CBA will the West Pilots actually be affected by USAPA’s
seniority proposal — whatever USAPA’s final proposal ulti-
mately is. Because these contingencies make the claim specu-
lative, the issues are not yet fit for judicial decision.
[6] We also conclude that withholding judicial consider-
ation does not work a direct and immediate hardship on the
West Pilots. “To meet the hardship requirement, a litigant
must show that withholding review would result in ‘direct and
immediate’ hardship and would entail more than possible
financial loss.” Winter v. Cal. Med. Review, Inc., 900 F.2d
1322, 1325 (9th Cir. 1990) (citing Cal. Dep’t of Educ. v. Ben-
nett, 833 F.2d 827, 833-34 (9th Cir. 1987)); see also Am.
Trucking Ass’ns v. ICC, 747 F.2d 787, 790 (D.C. Cir. 1984)
(finding no hardship where the policy statement the plaintiffs
challenged “neither impose[d] any obligation upon [the plain-
tiffs], nor in any other respect ha[d] any impact upon them
‘felt immediately . . . in conducting their day-to-day affairs’ ”
(quoting Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164
(1967))).
[7] Plaintiffs correctly note that certain West Pilots have
been furloughed, whereas they would still be working under
a single CBA implementing the Nicolau Award. It is, how-
ever, at best, speculative that a single CBA incorporating the
Nicolau Award would be ratified if presented to the union’s
membership. ALPA had been unable to broker a compromise
between the two pilot groups, and the East Pilots had
expressed their intentions not to ratify a CBA containing the
Nicolau Award. Thus, even under the district court’s injunc-
tion mandating USAPA to pursue the Nicolau Award, it is
uncertain that the West Pilots’ preferred seniority system ever
would be effectuated. That the court cannot fashion a remedy
8008 ADDINGTON v. US AIRLINE PILOTS ASSOC.
that will alleviate Plaintiffs’ harm suggests that the case is not
ripe.1
[8] Plaintiffs seek to escape this conclusion by framing
their harm as the lost opportunity to have a CBA implement-
ing the Nicolau Award put to a ratification vote. Because
merely putting a CBA effectuating the Nicolau Award to a
ratification vote will not itself alleviate the West Pilots fur-
loughs, Plaintiffs have not identified a sufficiently concrete
injury.2 Additionally, USAPA’s final proposal may yet be one
that does not work the disadvantages Plaintiffs fear, even if
that proposal is not the Nicolau Award.3
1
The dissent asserts that “nothing would be gained by postponing a
decision, and the parties’ interest would be well served by a prompt reso-
lution of the West Pilots’ claim.” Diss. op. at 8017 (internal alterations,
quotation marks, and citation omitted). To be sure, the parties’ interest
would be served by prompt resolution of the seniority dispute, but that is
not the same as prompt resolution of the DFR claim. The present impasse,
in fact, could well be prolonged by prematurely resolving the West Pilots’
claim judicially at this point. Forced to bargain for the Nicolau Award, any
contract USAPA could negotiate would undoubtedly be rejected by its
membership. By deferring judicial intervention, we leave USAPA to bar-
gain in good faith pursuant to its DFR, with the interests of all members
— both East and West — in mind, under pain of an unquestionably ripe
DFR suit, once a contract is ratified.
2
Plaintiffs’ alleged hardship cannot instead be premised on any delay
caused by USAPA in reaching a single CBA. As the district court noted,
Plaintiffs abandoned their claim that USAPA is intentionally delaying
negotiation of a CBA. Addington, 2009 WL 2169164, at *22 (“During dis-
covery, Plaintiffs retreated from any notion of deliberate delay on the part
of USAPA.”). The dissent’s assertion that “the absence of a CBA is itself
powerful evidence of a DFR violation,” Diss. op. at 8015, is therefore mis-
placed. Although absence of a CBA might be evidence of a DFR violation,
if the violation were based on deliberate delay by the union, it is not evi-
dence of a union’s improper preference of one seniority system over
another. As demonstrated by ALPA’s similar difficulties in reaching a
CBA, the pilot groups, and individual pilots with their ratification/non-
ratification powers, are the major contributors to the absence of a CBA in
these circumstances.
3
We do not address the thorny question of the extent to which the
Nicolau Award is binding on USAPA. We note, as the district court recog-
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8009
[9] Although we do not hold that a DFR claim based on a
union’s promotion of a policy is never ripe until that policy
is effectuated, we conclude that, in this case, there is too much
uncertainty standing in the way of effectuation of Plaintiffs’
harm to warrant judicial intervention at this stage. Cf. Ser-
geant v. Inlandboatmen’s Union of the Pac., 346 F.3d 1196,
1200 (9th Cir. 2003) (examining Labor Management Report-
ing and Disclosure Act issue “in light of the well-established
federal policy of avoiding unnecessary interference in the
internal affairs of unions and according considerable defer-
ence to the interpretation and application of a union’s rules
and regulations”).4
Our conclusion that Plaintiffs’ claim is not ripe is consis-
tent with our DFR decisions, which have found DFR viola-
tions based on contract negotiation only after a contract has
been agreed upon.5 See, e.g., Williams v. Pac. Mar. Ass’n, 617
nized, that USAPA is at least as free to abandon the Nicolau Award as was
its predecessor, ALPA. The dissent appears implicitly to assume that the
Nicolau Award, the product of the internal rules and processes of ALPA,
is binding on USAPA. See Diss op. at 8021-22.
4
The dissent agrees with “the general rule that we evaluate the duty of
fair representation based on the fairness of the actual representation as
memorialized in the [CBA,]” but would hold that this “is an unusual case
and . . . an exception” to that rule. Diss. op. at 8015. As much as the dis-
sent stresses the case-specific nature of our inquiry, however, there is no
disputing that this case would be the first time we allowed a DFR suit to
proceed in a collective bargaining/ contract negotiating context before the
CBA at issue was ratified. Such a departure from the norm would invite
parties to bring suit long before internal disputes have had a chance to
work themselves out. It would also force us in each case to decide —
without the benefit of hindsight that is enjoyed in statute of limitations
accrual cases — whether a union’s position is a mere announcement of a
bargaining position or the adoption of a permanent change in position.
Although the dissent believes that it is an easy question in this case, it will
not always be so.
5
Plaintiffs have identified only one case in which a court allowed a DFR
suit to proceed before a contract had been executed. See Mount v. Grand
Int’l Bhd. of Locomotive Eng’rs, 226 F.2d 604, 608 (6th Cir. 1955). In
8010 ADDINGTON v. US AIRLINE PILOTS ASSOC.
F.2d 1321, 1328, 1330 (9th Cir. 1980) (involving suit for
breach of DFR in negotiating CBA brought after rules at issue
were adopted); Bernard v. Air Line Pilots Ass’n, 873 F.2d
213, 215 (9th Cir. 1989) (involving suit for breach of DFR
during negotiations brought after agreement between union
and employer was reached); Hendricks v. Airline Pilots Ass’n,
696 F.2d 673, 674-75 (9th Cir. 1983) (same).
Indeed, the Supreme Court case that clarified that the DFR
was applicable during contract negotiations articulated its
holding in terms that imply a claim can be brought only after
negotiations are complete and a “final product” has been
reached. See Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S.
65, 78 (1991) (“[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 reason-
ableness,’ that it is wholly ‘irrational’ or ‘arbitrary.’ ” (quot-
ing Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953))).
Notably, even in the cases on which Plaintiffs rely most
Mount, the union notified employees that it would negotiate a contract
amendment in direct opposition to a series of rulings that had been made
pursuant to the union’s internal policies. Id. at 605-06. The Sixth Circuit
held that the fact that the proposed contract had not been executed did not
make the plaintiff’s DFR action premature. Id. at 608. Mount, however,
contained only a cursory analysis of the ripeness issue, and we are not per-
suaded to apply its conclusion to this case. More recent cases have held
that a claim does not accrue when the union merely announces its inten-
tion to breach its DFR in the future. See Ramey v. Dist. 141, Int’l Ass’n
of Machinists & Aerospace Workers, 378 F.3d 269, 279 (2d Cir. 2004)
(“[W]e do not require, or even permit, union members to bring a suit
against their union simply because the union has announced its future
intention to break its duty.”); Teamsters Local Union No. 42 v. NLRB, 825
F.2d 608, 615-16 (1st Cir. 1987) (“Knowledge of a party’s predisposition
to commit an unfair labor practice or suspicion that, when the moment is
opportune, the knife thrust will follow, is not enough to galvanize § 10(b).
The statute begins to run only when the impermissible act or omission —
the unfair labor practice — actually takes place.”).
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8011
heavily, the policy that the plaintiffs claimed injured them had
already been effectuated when the plaintiffs brought the
claim. See Ramey v. Dist. 141, Int’l Ass’n of Machinists &
Aerospace Workers, 378 F.3d 269, 275-76 (2d Cir. 2004)
(noting that airline had accepted union’s seniority system and
the plaintiffs had been furloughed as a result); Teamsters
Local Union No. 42 v. NLRB, 825 F.2d 608, 611 (1st Cir.
1987) (noting that shifts had been assigned according to
union’s seniority system). Although both the Ramey court and
Teamsters court concluded the claim accrued (for statute of
limitations purposes) before effectuation of the policy at
issue, see Ramey, 378 F.3d at 279-80 (holding that claim
accrued when union advocated seniority position to employer
during contract negotiations); Teamsters, 825 F.2d at 614-15
(holding that claim accrued when union announced to the
plaintiffs that they had been assigned to less desirable shift,
even though negotiations with employer regarding the senior-
ity system that would dictate shift assignments occurred two
months later), the holdings are not as easily applied in our sit-
uation as plaintiffs urge.6 In both Ramey and Teamsters, the
6
Indeed, we are hesitant to transplant a rule from cases analyzing claim
accrual for statute of limitations purposes to the ripeness context.
Although we have noted the relationship between the statute of limitations
and ripeness inquiries, see Levald, Inc. v. City of Palm Desert, 998 F.2d
680, 687 (9th Cir. 1993) (“Determining when the cause of action accrues
is merely the corollary to the ripeness inquiry.”), there are key differences
in the posture of a case that presents a statute of limitations issue and one
that presents a ripeness issue. In a statute of limitations case, unlike a ripe-
ness case, the injury has unquestionably culminated, and the issue is
whether the plaintiffs learned or should have learned of the injury so long
ago that it would no longer be fair to bring the suit. In deciding these
cases, courts often decline to identify a specific date on which the claim
accrued, instead identifying the “earliest” or “latest” date it could have
accrued, depending on whether the court determines the claim to have
fallen inside or outside the applicable statute of limitations. See, e.g.,
Gvozdenovic v. United Air Lines, Inc., 933 F.2d 1100, 1106 (2d Cir. 1991)
(concluding that claim was time-barred because it accrued “at the latest”
on the date the union ratified the allegedly violative agreement, which was
more than six months before filing).
8012 ADDINGTON v. US AIRLINE PILOTS ASSOC.
unions argued that the plaintiffs’ claims had accrued more
than six months prior to filing, such that the cases were barred
by the statute of limitations. Ramey, 378 F.3d at 276; Team-
sters, 825 F.2d at 614. In addressing whether the cases were
time-barred, each court was faced with the issue whether the
claim accrued when the union announced its intention to take
a negotiating position that would amount to a DFR breach (a
date that fell outside the six-month period) or when the union
actually advocated that position to the employer during nego-
tiations (a date that fell within the six-month period). Ramey,
378 F.3d at 278-80; Teamsters, 825 F.2d at 614-15. The court
in each case found that the claim accrued at the later date.
Ramey, 378 F.3d at 279-80; Teamsters, 825 F.2d at 614-15.
Significantly, however, because the date the union advocated
its position in negotiations fell within the six-month period in
both cases, there would have been no need for the plaintiffs
to argue that the claim did not accrue until effectuation of the
policy. Moreover, because the seniority systems at issue
already had been effectuated in both cases, the courts simply
were not faced with the possibility of interfering in a union’s
internal conflict before the conflict manifested as concrete
injury to the plaintiffs.
We also note in these cases the apparent absence of contin-
gencies that stood between the union’s advocating to the
employer a position on a certain policy and the implementa-
tion of that policy. Neither Ramey nor Teamsters references
a ratification requirement, and in both cases the employer
seemed predisposed to follow the union’s proposal. In Team-
sters, the court found accrual at the date the union communi-
cated its adverse action to the employees. 825 F.2d at 614-15.
Although the negotiations that would result in that adverse
action had not yet been completed, the announcement was
definitive. Id. In Ramey, the underlying district court decision
indicates that the employer had already agreed to accept what-
ever seniority system the union proposed. See Ramey v. Dist.
141, Int’l Ass’n of Machinists & Aerospace Workers, 2002
WL 32152292, at *4 (E.D.N.Y. Nov. 4, 2002) (noting that the
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8013
transition agreement in effect gave the union “complete con-
trol over the issue of seniority”). Because of these distinc-
tions, we are not convinced that these cases, even if they were
binding on us, would require a finding of ripeness in the cir-
cumstances of the case at bench.7
Finally, we find instructive our cases analyzing accrual of
DFR claims that are based on a union’s alleged errors outside
the contract negotiation process.8 In the grievance context,
too, we have required that a final outcome be reached before
allowing a suit based on a union’s allegedly violative conduct
that led to the decision. See Kozy v. Wings W. Airlines, Inc.,
89 F.3d 635 (9th Cir. 1996). In Kozy, an employee brought a
DFR claim alleging the union committed errors while repre-
7
Plaintiffs correctly note that Ramey suggests a DFR claim can accrue
before implementation of the policy at issue. Analogizing to anticipatory
repudiation in a breach of contract case, the Ramey court noted that it
would be possible — but not required — for a claim to be brought when
a union unequivocally communicates its intention to breach its DFR, but
that for statute of limitations purposes, the claim did not accrue until “the
date on which performance was due, namely the date on which [the union]
advocated a position on the seniority issue to [the employer].” 378 F.3d
at 279-80. The court went on, however, to qualify its holding, recognizing
the requirement of likelihood of harm:
Because we hold that [the union] has not met its burden to demonstrate
that plaintiffs reasonably should have known that the breach occurred
before January 28, 1999 [the date six months before filing date], we do not
address the difficult and unsettled question of how certain it must be that
harm will be caused by a union’s breach in order to trigger the statute of
limitations. We have held that the statute of limitations is triggered even
if it is not absolutely certain that a union member will be harmed by a
breach. However, we note that there must be some likelihood that a harm
will result from a union’s breach before a member may file suit. Other-
wise, such claims would be unduly speculative. We caution district courts
to consider this issue in the future when faced with a suit brought after a
union breaches but before tangible harm is caused.
Id. at 280 n.5 (citations omitted).
8
The DFR applies both to contract negotiation and contract administra-
tion. See O’Neill, 499 U.S. at 67.
8014 ADDINGTON v. US AIRLINE PILOTS ASSOC.
senting him in a grievance hearing before an arbitrator. Id. at
638. We held that the claim had not accrued until the arbitra-
tor’s written decision was issued. Id. at 639. We noted that
There was, at one time, some indication in this Cir-
cuit that the employee ‘should know’ of his Union’s
errors in representing him at a hearing when he saw
the errors committed during the hearing, and that the
six-month [statute of limitations] period began to run
from that date even if the grievance board had not
yet rendered its final decision.”
Id. at 640 (citing Galindo v. Stoody Co., 793 F.2d 1502, 1509
(9th Cir. 1986)). However, we stated, Galindo resolved that
confusion, holding that a claim accrues for statute of limita-
tions purposes only when the employee learns of the arbitra-
tor’s award. Kozy, 89 F.3d at 640 (citing Galindo, 793 F.2d
at 1509). The holding in Galindo “recognize[d] that the arbi-
trator’s final decision could make the employee whole despite
the union’s errors, and that the arbitrator could change his
mind at any time prior to issuing a final and binding deci-
sion.” Kozy, 89 F.3d at 640 (citing Galindo, 793 F.2d at
1509). Similarly, in the context of negotiations toward a CBA,
the parties could shift positions until negotiations are com-
plete, and the final agreement could be acceptable to Plain-
tiffs.
CONCLUSION
[10] For the foregoing reasons, we hold that Plaintiffs’
DFR claim is not ripe; therefore, the case is REMANDED to
the district court with directions that the action be DIS-
MISSED. No costs to either side.
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8015
BYBEE, Circuit Judge, dissenting:
I agree with much of the majority opinion. I concur that, in
general, we should not decide duty of fair representation
(“DFR”) challenges until “after a contract has been agreed
upon.” Maj. Op. at 8009. In the typical case, the contract will
be the best evidence of fair representation or lack thereof. In
my view, however, the contract is not the sine qua non of
unfair representation, and the fact that a case could be more
ripe—in the sense that the issues could be more concrete,
more focused—is not evidence of the contrary proposition
that the case is not ripe.
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 memorial-
ized in the Collective Bargaining Agreement (“CBA”). Here,
the absence of a CBA is itself powerful evidence of a DFR
violation. As set forth quite fairly in the majority opinion and
in a lengthy and careful opinion by the district court, the Air
Line Pilots Association (“ALPA”) was decertified and a new
union, the U.S. Airline Pilots Association (“USAPA”), certi-
fied precisely to frustrate implementation of the Nicolau
Agreement and to negotiate a CBA with U.S. Airways that
favors the East Pilots. As the district court found, “USAPA’s
sole objective in adopting and presenting its seniority pro-
posal 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.” It has been
nearly five years since the two airlines merged, and the pilots
are further from, not closer to, a CBA that reflects the inter-
ests of both pilot groups. Although a CBA would supply tan-
gible evidence of a violation of the DFR, in this case, there
is sufficient evidence to consider the West Pilots’ complaint
without the CBA. The issues are concrete and were well
8016 ADDINGTON v. US AIRLINE PILOTS ASSOC.
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.
I
The “basic rationale” of the ripeness doctrine “is to prevent
the courts, through premature adjudication, from entangling
themselves in abstract disagreements.” Thomas v. Union Car-
bide Agric. Prods. Co., 473 U.S. 568, 580 (1985). “Constitu-
tional ripeness, in many cases, ‘coincides squarely with
standing’s injury in fact prong’ and ‘can be characterized as
standing on a timeline.’ ” Stormans, Inc. v. Selecky, 586 F.3d
1109, 1122 (9th Cir. 2009) (quoting Thomas v. Anchorage
Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000)).
Ripeness is a case-specific inquiry and does not lend itself to
broad, bright-line rules based on the type of claim asserted. In
Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1212 (9th Cir. 2006) (en
banc), we wrote that “[i]t is [ ] important to a ripeness analy-
sis that we specify the precise legal question to be answered.
Depending on the legal question, the case may be ripe or
unripe. If we ask the wrong legal question, we risk getting the
wrong answer to the ripeness question.”
A
Getting the legal question right is critical. Two related
cases from the Supreme Court are particularly instructive
here. In Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984),
the Court held that a plaintiff’s challenges to the constitution-
ality of an arbitration and compensation scheme in the Federal
Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) would
not become ripe until the “[Environmental Protection
Agency] ha[d] considered data submitted by [the plaintiff] in
evaluating another application and an arbitrator ha[d] made an
award . . . .” Id. at 1020. The very next term, however, in
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8017
Thomas v. Union Carbide Agricultural Products Co., the
Court held that a similar constitutional challenge to FIFRA’s
arbitration provisions was ripe even though none of the thir-
teen plaintiffs was actually challenging an arbitration award.
473 U.S. at 579-82. Only one plaintiff—Stauffer Chemical
Company—had engaged in arbitration, and it sought to
enforce the award. None of the twelve other plaintiffs had
actually engaged in an arbitration under FIFRA, but they
alleged that they were “aggrieved by the threat of an uncon-
stitutional arbitration procedure.” Id. at 579. The Court did
not dismiss any plaintiff’s claims on ripeness grounds: “One
does not have to await the consummation of threatened injury
to obtain preventive relief. If the injury is certainly impend-
ing, that is enough. Nothing would be gained by postponing
a decision, and the public interest would be well served by a
prompt resolution of the constitutionality of FIFRA’s arbitra-
tion scheme.” Id. at 581-82 (quotation marks and citations
omitted) (emphasis added).
What our decision in Yahoo! and the Court’s decisions in
Monsanto and Thomas make clear is that ripeness is a contex-
tual 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[s]
would be well served by a prompt resolution of” the West
Pilots’ DFR claim. Id. at 582.
B
“[A] union breaches the duty of fair representation when its
conduct toward a member of the bargaining unit is arbitrary,
discriminatory, or in bad faith.” Marquez v. Screen Actors
Guild, Inc., 525 U.S. 33, 44 (1998). “The duty . . . is the quid
pro quo for the union’s right to exclusive representation; it
protects employees in the minority from arbitrary discrimina-
tion by the majority union.” Laborers & Hod Carriers, Local
No. 341 v. N.L.R.B., 564 F.2d 834, 839-40 (9th Cir. 1977).
8018 ADDINGTON v. US AIRLINE PILOTS ASSOC.
The majority describes three DFR cases from this cir-
cuit—Williams v. Pacific Maritime Association, 617 F.2d
1321 (9th Cir. 1980), Bernard v. Airline Pilots Association,
873 F.2d 213 (9th Cir. 1989), and Hendricks v. Air Line Pilots
Association, 696 F.2d 673 (9th Cir. 1983)—as “f[inding] DFR
violations based on contract negotiation only after a contract
has been agreed upon,” Maj. Op. at 8009. These cases are not
only distinguishable, but completely inapposite. First, none of
these cases even mentions ripeness. Together, Williams, Ber-
nard, and Hendricks stand for the uncontroversial proposition
that a DFR claim can be brought after a CBA or finalized
seniority integration agreement has been completed. The issue
here, however, is whether a DFR claim must be brought after
a CBA or finalized seniority integration agreement, which
none of our cases cited by the majority even purports to
address.
Just as importantly, none of these cases addressed the “pre-
cise legal question” advanced by the West Pilots. In Williams,
“[t]he heart of the employees’ claim of unfair representation
[wa]s that the union breached its statutory duty to plaintiffs by
agreeing to the adoption of [certain] standards for deregistra-
tion.” 617 F.2d at 1328 (emphasis added). In Bernard, the fac-
tual situation was basically a mirror image of this case: the
merger of Alaska Air Group and Jet America became effec-
tive on October 1, 1987, and a seniority integration agreement
was completed less than a week later, on October 6, 1987. 873
F.2d at 215. The plaintiffs in Bernard sued immediately there-
after and were quickly granted preliminary injunctive relief,
which we upheld. Id. at 215, 219. Here, the West Pilots claim
to be aggrieved by the failure to pursue the memorialization
of an arbitration award in a finalized seniority integration
agreement, while in Bernard the claim was the opposite: an
agreement was memorialized almost immediately, without
taking into account a preexisting merger policy. Finally, in
Hendricks, plaintiffs argued that “the union [ ] breached its
duty of fair representation because [a contract] amendment
was arbitrary and discriminatory.” 696 F.2d at 677 (emphasis
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8019
added). Like the theory in Williams, the plaintiffs’ theory in
Hendricks actually challenged a memorialized agreement and
was therefore not the “precise” legal theory advanced here.
The majority also cites Air Line Pilots Association v.
O’Neill, 499 U.S. 65 (1991) (“ALPA”), for the proposition
that “a claim can only be brought once negotiations are com-
plete and a ‘final product’ has been reached.” Maj. Op. at
8010. With all due respect, this overstates what ALPA said.
ALPA said nothing about the ripeness doctrine. What the
Court said was that “[a]ny substantive examination of a
union’s performance . . . must be highly deferential, recogniz-
ing the wide latitude that negotiators need for the effective
performance of their bargaining responsibilities. For that rea-
son, the final product of the bargaining process may constitute
evidence of a breach of duty . . . .” 499 U.S. at 78 (internal
citations omitted). The Court’s statement in ALPA only con-
firms what we already know: a CBA may be the best evidence
of satisfaction of or violation of the DFR. But the Court’s
equivocal “may constitute evidence” falls well short of con-
firming that “a claim can only be brought” once there is a
CBA.
None of these cases are relevant with respect to the ripeness
issue here. They stand for the noncontroversial proposition
that a DFR claim can be brought after a CBA has been com-
pleted. By contrast, the issue here is whether a DFR claim can
be brought prior to the completion of a CBA.
II
I agree with the majority that this case would be ripe if
USAPA and U.S. Air had entered into a CBA. That is not the
question that this case presents. We are asked whether our
Article III jurisdiction extends to a DFR claim based on a
union “constitutionally committed,” Maj. Op. at 8001, to
voiding a binding arbitration award and adopting a “date of
hire” seniority principle that plainly favors one side of a
8020 ADDINGTON v. US AIRLINE PILOTS ASSOC.
merger. When the question is posed in this way, I believe the
ripeness of the West Pilots’ claims becomes clear.
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 hard-
ship 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 con-
tingent future events such as the memorialization of a final-
ized 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, includ-
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8021
ing the Airline . . . . In addition to depriving the West
Pilots of legitimate representation, USAPA’s bar-
gaining position leaves the Airline to decide between
a lack of a single CBA and an unlawful single CBA.
(Emphasis added).
I agree with the district court that, given the “precise legal
question” raised by the West Pilots, this case is “fit for deci-
sion.” As the district court correctly observed, given the con-
stitutional commitment of USAPA to date-of-hire principles
—principles irreconcilably opposed to the compromise
embodied in the Nicolau Award—“the outcome of negotia-
tions is irrelevant.” As a result, the question presented in this
case does not pivot on any “ ‘contingent future events that
may or may not occur as anticipated, or indeed may not occur
at all.’ ” Maj. Op. at 8006 (quoting Cardenas v. Anzai, 311
F.3d 929, 934 (9th Cir. 2002)). The West Pilots’ claimed “in-
jury is certainly impending, [and] that is enough.” United
States v. Streich, 560 F.3d 926, 931 (9th Cir. 2009) (quotation
marks omitted). Instead, as the district court found, “USAPA
has misled the majority about its power to improve their
seniority prospects at the expense of the West Pilots. The will
of the East Pilots springs from a mistaken understanding of
the law and mismanaged expectations. If this is an impasse,
it is one USAPA has goaded on.” (Emphasis added). The
impasse is not evidence of the lack of ripeness of the West
Pilots’ claims. It is Exhibit A in their case—it is itself evi-
dence of USAPA’s intractability on behalf of the East Pilots.
Again, as the district court found, “USAPA has made plain its
intent never to bargain for the Nicolau Award,” and time
appears to be on the side of the East Pilots.1 Under these cir-
cumstances, the West Pilots need not “await the consumma-
1
Although the West Pilots are not claiming that USAPA has “deliberate-
ly” delayed completing a CBA, Maj. Op. at 8008 n.2, the majority notes
that West Pilots have been furloughed and that they would not have been
furloughed under the Nicolau Award, id. at 8007.
8022 ADDINGTON v. US AIRLINE PILOTS ASSOC.
tion of threatened injury to obtain preventive relief.” Id.
(quotation marks omitted).
When the East Pilots campaigned to decertify ALPA and
replace it with USAPA, a new union constitutionally commit-
ted to pursuing date-of-hire principles, a DFR claim by the
West Pilots would not have been ripe. As the Second Circuit
explained in Ramey v. District 141 International Association
of Machinists and Aerospace Workers, 378 F.3d 269 (2d Cir.
2004), “a breach [of the duty of fair representation does not]
occur[ ] when a union announces an intention, even if it does
so unequivocally, to advocate against the interests of its mem-
bers in the future.” Id. at 278. But when USAPA won the cer-
tification election and refused in practice to bargain for
implementation of the Nicolau Award, a previously
bargained-for award that the Airline had already accepted and
continues to accept, this was not the announcement of an
intention, but actual “act[ion] against the interest[s] of” the
West Pilots—the precise point at which, it seems to me (and
to the Second Circuit), a DFR breach occurs. Id. (“the breach
occurs when the union acts against the interests of its mem-
bers”); see also Santos v. Dist. Council of New York City &
Vicinity of United Brotherhood of Carpenters and Joiners of
Am., AFL-CIO, 619 F.2d 963, 970-71 (2d Cir. 1980) (holding
that a union breached its duty of fair representation, and a
DFR claim began to accrue, at the time “appellants were
aware that the [union] was not proceeding in good faith to
seek enforcement of [an arbitration] award”).
The majority argues that this case will not be ripe until “the
airline responds to [USAPA’s seniority] proposal, the parties
complete negotiations, and the membership ratifies the CBA,”
Maj. Op. at 8007, but I respectfully disagree. Certainly this
case might be “riper” were plaintiffs to wait for these future
events, but when USAPA took the reins as the West Pilots’
union and refused to pursue the Nicolau Award, USAPA’s
promise moved from abstract disagreement to adjudicable
legal controversy. The future events cited by the majority are
ADDINGTON v. US AIRLINE PILOTS ASSOC. 8023
not likely to occur anytime soon, and plaintiffs will be harmed
all the while. In the words of the Thomas Court, “[n]othing
would be gained by postponing a decision . . . .” 473 U.S. at
582.
The ripeness inquiry is not concerned with whether a case
is as ripe as it possibly could be. Twelve of the plaintiffs in
Thomas had never even entered into FIFRA arbitration. Their
claims would have been riper had they undergone FIFRA
arbitration prior to joining with Stauffer in a challenge to
FIFRA’s arbitration procedures. Yet the Court noted these
plaintiffs’ “continuing uncertainty and expense” and
explained that “[o]ne does not have to await the consumma-
tion of threatened injury to obtain preventive relief.” Id. at
581 (quotation marks omitted). No one disputes that the West
Pilots are now suffering, and will continue to suffer, “continu-
ing uncertainty and expense” due to the seniority impasse.
They are entitled to have their claims heard.
I respectfully dissent.