Crocker v. Piedmont Aviation, Inc.

• Decision Date: 19 April 1995
• Docket Number: 93-7142,Nos. 93-7141,s. 93-7141
• Citation: 49 F.3d 735,311 U.S.App. D.C. 1
• Parties: 148 L.R.R.M. (BNA) 2743, 311 U.S.App.D.C. 1, 63 USLW 2561 Hobart N. CROCKER, Jr., Appellant, v. PIEDMONT AVIATION, INC., Appellee. Hobart N. CROCKER, Jr., Appellee, v. PIEDMONT AVIATION, INC., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 735

49 F.3d 735

148 L.R.R.M. (BNA) 2743, 311 U.S.App.D.C.

1, 63 USLW 2561

Hobart N. CROCKER, Jr., Appellant, v. PIEDMONT AVIATION, INC., Appellee.

Hobart N. CROCKER, Jr., Appellee, v. PIEDMONT AVIATION, INC., Appellant.

Nos. 93-7141, 93-7142.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 31, 1994.

Decided March 3, 1995.

As Amended March 3, 1995.

Rehearing and Suggestion for Rehearing

In Banc Denied April 19, 1995.

Appeals from the United States District Court for the District of Columbia (86cv01673).

David M. Kirstein, Washington, DC, argued the cause for appellant. With him on the briefs was Robert M. Beckman, Washington, DC. Pierre E. Murphy, Washington, DC, entered an appearance for appellant.

Thomas E. Reinert, Jr., Washington, DC, argued the cause for appellee. With him on the brief was Neal D. Mollen, Washington, DC.

Before: WILLIAMS, GINSBURG and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge.

When Congress deregulated the airline industry in the late 1970s, it sought to soften the blow to longtime airline employees who might lose their jobs in the expected industry shake-up. It therefore included in the deregulatory legislation an Employee Protection Program ("EPP") for experienced airline workers who lost jobs or income as the result of a covered carrier's bankruptcy or downsizing. Airline Deregulation Act of 1978, Pub.L. No. 95-504, Sec. 43, 92 Stat. 1750 (1978) (current version at 49 U.S.C. Secs. 42101-06). Among other things, the EPP gives a furloughed or terminated employee with four years' experience as of October 1978 a "first right of hire, regardless of age, in his occupational specialty, by any other air carrier hiring additional employees...." Airline Deregulation Act Sec. 43(d)(1); see also recodification at 49 U.S.C.A. Sec. 42103 and hist. note (West 1994). ¹ Airlines are under a corresponding "duty to hire such a person before they hire any other person" besides their own laid-off employees. Airline Deregulation Act Sec. 43(d)(1).

Hobart Crocker, Jr., a furloughed pilot protected by the EPP, sued Piedmont Aviation (now part of USAir, Inc.) for allegedly failing to hire him in violation of the Act. His complaint asked for instatement as a pilot and back pay. The district court denied Crocker's motion for a jury trial and, in a bench trial, found for Piedmont. We now hold that Crocker was entitled to a jury trial on his claims and that his failure to receive such a trial was prejudicial. In response to Piedmont's cross-appeal, we hold that the district court ruled correctly in finding Crocker's complaint to be timely filed under the District of Columbia's general three-year tort statute of limitations. We therefore remand the case for a jury trial.

I.

Crocker was a pilot for Air New England from 1973 until he was furloughed when the carrier ceased operations in October 1981. In April 1982 he applied for a position as a pilot with Piedmont Aviation. Piedmont called Crocker and invited him to interview with the airline's pilot selection committee in July 1982. Crocker was then 56 years old.

At this point, Piedmont's and Crocker's stories diverge. Piedmont maintains that immediately after the meeting, it disqualified Crocker from further consideration based on his admission during the interview that the Federal Aviation Administration had temporarily suspended his pilot's license for violating safety rules. Crocker, on the other hand, alleges that Piedmont refused to hire him because of his age, notwithstanding the EPP's explicit prohibition on taking age into account.

In March 1984, Piedmont began hiring pilots who were not covered by the EPP's first-hire obligations. Crocker filed this action in June 1986, alleging that the hiring of these unprotected candidates violated his priority under the EPP; he asked for instatement as a pilot and back pay and demanded a jury trial. Piedmont moved for summary judgment in 1988 on the grounds that the suit was untimely filed; as discussed in greater detail below, the district court denied the motion. 696 F.Supp. 685, 689-92 (D.D.C.1988). Piedmont filed a second motion for summary judgment (technically, a motion to strike part of the plaintiff's claim for relief) in 1989, contending that Crocker lost his EPP rights when he took temporary employment with a non-certificated, bankrupt air taxi service while awaiting a decision from Piedmont. The district court granted the motion. 741 F.Supp. 241 (D.D.C.1989). Crocker appealed, and we reversed and remanded for trial. Crocker v. Piedmont Aviation, Inc., 933 F.2d 1024 (D.C.Cir.1991).

Roughly a week before jury selection was to begin, the district court granted Piedmont's motion to strike Crocker's jury demand on the grounds that the claims for back pay and instatement were both equitable in nature; hence, the Seventh Amendment's guarantee of a jury trial for all "Suits at common law, where the value in controversy shall exceed twenty dollars" did not apply. After a two-day bench trial, the court found that Piedmont had a policy of never hiring pilots whose flying licenses had been suspended by the FAA, that this hiring standard was a legitimate non-age-based requirement of employment, and that Piedmont had refused to hire Crocker because he failed to meet this standard. The court entered judgment for Piedmont.

Crocker now appeals both the order striking his jury demand and the order entering judgment for Piedmont. Piedmont cross-appeals the district court's 1988 decision applying a three-year statute of limitations to the claims and denying summary judgment. We address the statute of limitations issues first.

II.

A. Waiver and Law of the Case

Piedmont urges us to affirm the judgment entered in its favor, regardless of how we rule on the Seventh Amendment question, because the suit was filed out of time. The airline maintains that a six-month statute of limitations borrowed from the National Labor Relations Act governs the cause of action and bars this suit, which was filed 27 months after the claim accrued in March 1984. Piedmont initially raised this argument before the trial court in its 1988 motion for summary judgment. The district court denied this motion, holding that the District of Columbia's general three-year tort statute of limitations provided the relevant period and that Crocker's suit was thus timely filed. When this case came to us on Crocker's appeal in 1991, however, Piedmont did not challenge this earlier statute of limitations ruling or present it as a possible alternative basis for affirming its award of summary judgment.

Crocker maintains that by this failure to present the issue to us in 1991, Piedmont has forfeited the possibility of raising a statute of limitations argument on this appeal. He argues that the district court's 1988 limitations ruling has become the binding law of the case, which we may not revisit. We reject Crocker's position and decide the limitations issue.

"Law-of-the-case doctrine" refers to a family of rules embodying the general concept that a court involved in later phases of a lawsuit should not re-open questions decided (i.e., established as the law of the case) by that court or a higher one in earlier phases. When there are multiple appeals taken in the course of a single piece of litigation, law-of-the-case doctrine holds that decisions rendered on the first appeal should not be revisited on later trips to the appellate court. See, e.g., Northwestern Ind. Tel. Co. v. FCC, 872 F.2d 465, 471 (D.C.Cir.1989) (appellate court's prior ruling establishing exhaustion requirement is law of the case and cannot be challenged on second appeal); Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1090, 1093 (D.C.Cir.1984) (challenge to district court's correct application of prior appellate decision is barred by law-of-the-case doctrine); see also 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure Sec. 4478, at 801 (1981); id. at 625 (1994 Supp.) ("Arguments that were not advanced on appeal may be lost because they are found wrapped up with a larger issue that was decided" previously). What identifies this as true law-of-the-case preclusion is that the first appeals court has affirmatively decided the issue, be it explicitly or by necessary implication. See Women's Equity Action League v. Cavazos, 906 F.2d 742, 751 n. 14 (D.C.Cir.1990) ("Questions that merely could have been decided do not become law of the case") (citing Bouchet v. National Urban League, 730 F.2d 799, 806 (D.C.Cir.1984)).

Previous decisions of this court have extended these principles beyond their core application. We have several times said that appellate courts are precluded from revisiting not just prior appellate decisions but also those prior rulings of the trial court that could have been but were not challenged on an earlier appeal. "[A] legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, [governs] future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time," Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.Cir.1987). See also Palmer v. Kelly, 17 F.3d 1490, 1495-96 (D.C.Cir.1994); Laffey, 740 F.2d at 1089-90 (defendant's failure to challenge district court's formula for calculation of damages on first appeal waives any potential challenge on later appeals). Although we have often referred to this second principle as a type of law-of-the-case rule (in part because the two principles were first articulated in this circuit alongside one another, see Laffey, 740 F.2d at 1089-93), it is an analytically distinct principle: unlike law-of-the-case doctrine proper, this bar on raising issues omitted from prior appeals--best understood as a species of waiver...