Crocker v. Piedmont Aviation, Inc., 90-7021

• Citation: 933 F.2d 1024
• Decision Date: 24 May 1991
• Docket Number: No. 90-7021,90-7021
• Parties: 138 L.R.R.M. (BNA) 2876, 290 U.S.App.D.C. 18, 59 USLW 2713 Hobart N. CROCKER, Jr., Appellant, v. PIEDMONT AVIATION, INC., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1024

933 F.2d 1024

138 L.R.R.M. (BNA) 2876, 290 U.S.App.D.C.

18, 59 USLW 2713

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

No. 90-7021.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 18, 1991.

Decided May 24, 1991.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-01673).

Pierre Murphy, with whom Robert M. Beckman and David M. Kirstein were on the brief, Washington, D.C., for appellant.

Richard G. Parker, with whom Donald T. Bliss and James J.R. Talbot were on the brief, Washington, D.C., for appellee.

Elizabeth Hopkins, Allen H. Feldman and Steven J. Mandel, Attys., Dept. of Labor, entered appearances, Washington, D.C., for amicus curiae urging reversal.

Before MIKVA, Chief Judge, and SENTELLE and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

HENDERSON, Circuit Judge:

Hobart N. Crocker, Jr., brought this action alleging that Piedmont Aviation, Inc. violated section 43(d) of the Airline Deregulation Act, Pub.L. No. 95-504, 92 Stat. 1705 (1978), by failing to accord Crocker a hiring preference after he lost his position as a pilot with a regulated, certificated airline following deregulation of the airline industry. The district court granted summary judgment in Piedmont's favor, concluding that Crocker lost his section 43(d) right of first hire before the alleged violation when he obtained employment with a noncertificated commuter airline. 741 F.Supp. 241. Crocker now appeals the district court's judgment asserting that his first-hire right survived his hiring by the noncertificated carrier. We agree with Crocker that employment by a noncertificated carrier does not extinguish a section 43(d) first-hire right and, therefore, reverse the district court.

I.

On appeal from a grant of summary judgment, we must view the record in the light most favorable to the appellant. Williams v. Mordkofsky, 901 F.2d 158, 160 (D.C.Cir.1990). So viewed, the record reveals the following facts.

In 1971 Crocker began employment as an airline pilot for Air New England, a regulated airline holding a certificate of public convenience and necessity from the Department of Transportation. In 1978, while Crocker was so employed, Congress passed the ADA which largely freed the airlines from government regulation. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 680, 107 S.Ct. 1476, 1477, 94 L.Ed.2d 661 (1987). Seeking "to ensure that the benefits to the public flowing from this deregulation would not be 'paid for' by airline employees who had relied on the heavily regulated nature of the industry in deciding to accept and to retain positions with commercial air carriers," Congress enacted section 43 of the ADA, the "Employee Protection Program," 49 U.S.C. app. Sec. 1552, (EPP), "in order to assist employees dislocated as a result of deregulation." Alaska Airlines, 480 U.S. at 680-81, 107 S.Ct. at 1478.

The EPP, as enacted, provides two benefits for a displaced airline employee who qualifies as a "protected employee," that is, an employee who "on October 24, 1978, ha[d] been employed for at least 4 years by an air carrier holding a certificate issued under section 1371 of [the appendix to title 49]." 49 U.S.C. app. Sec. 1552(h)(1). First, the EPP provides for payment from a government fund of a "monthly assistance payment" to a protected employee who loses his job or suffers financial loss as a result of a bankruptcy or severe work force reduction caused by deregulation. See 49 U.S.C. app. Sec. 1552(a), (b), (h); Alaska Airlines, 480 U.S. at 681 & n. 1, 107 S.Ct. at 1478 & n. 1. ¹ Second, subsection (d) of the EPP guarantees a right of first hire under certain circumstances for a displaced protected employee:

Each person who is a protected employee of an air carrier which is subject to regulation by the Civil Aeronautics Board who is furloughed or otherwise terminated by such an air carrier (other than for cause) prior to the last day of the ten-year period beginning on October 24, 1978 shall have first right of hire, regardless of age, in his occupational specialty, by any other air carrier hiring additional employees which held a certificate issued under section 1371 of [the appendix to title 49] prior to October 24, 1978. Each such air carrier hiring additional employees shall have a duty to hire such a person before they [sic] hire any other person, except that such air carrier may recall any of its own furloughed employees before hiring such a person. Any employee who is furloughed or otherwise terminated (other than for cause), and who is hired by another air carrier under the provisions of this subsection, shall retain his rights of seniority and right of recall with the air carrier that furloughed or terminated him.

49 U.S.C. app. Sec. 1552(d).

In October 1981 Crocker was furloughed by Air New England when that airline ceased operation. In April 1982 he applied for employment with Piedmont, a "certificated" carrier subject to the EPP's first-hire duty, and in July of that year Piedmont interviewed him. In December 1982, having heard nothing from Piedmont, Crocker took a position as chief pilot for Coral Air, Inc., a noncertificated commuter airline then in Chapter 11 bankruptcy, and soon afterward became its Director of Operations.. In July 1983, shortly before Coral Air's assets were frozen and it halted operations, Crocker resigned his position with that carrier.

In June 1986, Crocker filed this action alleging Piedmont violated section 43(d) by refusing to hire him, pursuant to his right of first hire, during the period beginning in March 1984 when Piedmont hired other, nonprotected pilots. ² On October 4, 1989, Piedmont moved to strike certain portions of Crocker's claim for relief. By memorandum opinion and order filed November 15, 1989, the district court, treating the motion as one for summary judgment, granted judgment in Piedmont's favor on the ground that Crocker ceased to be a covered employee entitled to a hiring preference when he took employment with Coral Air. Crocker then filed a motion for reconsideration which was denied by memorandum opinion and order filed February 8, 1990. Crocker now appeals the district court's decision.

II.

It is undisputed for the purpose of this appeal that Crocker is a protected employee under the EPP and that he acquired a section 43(d) right of first hire in October 1981 when he was laid off by Air New England. Thus, the sole issue before this court is whether Coral Air's hiring of Crocker in December 1982 extinguished his right of first hire under the statute so as to relieve Piedmont of its statutory obligation to afford Crocker a hiring preference over nonprotected applicants. We hold that it did not.

In its opinion granting Piedmont's motion, the district court concluded that Crocker's employment with Coral Air, a noncertificated carrier, extinguished his first-hire right. Observing that the EPP expressly limits the duration and amount of monthly assistance payments to a displaced protected employee able to obtain new employment by (1) reducing the amount of monthly payments to a protected employee who is offered but fails to accept "reasonably comparable employment," 49 U.S.C. app. Sec. 1552(b)(2), and (2) terminating payments altogether after seventy-two months or when "the recipient obtains other employment," whichever occurs first, 49 U.S.C. app. Sec. 1552(e)(1), the district court reasoned:

The fact that an employee was hired by a non-covered carrier, if in a "reasonably comparable position," would get the employee off the assistance to the extent that the salary was comparable. It would be a strange result for the government to burden private employers more than itself by letting the government's responsibility end when the protected employees got "reasonably comparable employment" but require continued private air carrier preference until the employee got a "covered carrier" position.

Memorandum Opinion dated November 14, 1989 at 7-8 (footnote omitted). In its order denying reconsideration, the court offered an additional rationale for its ruling: "Plaintiff secured a job in his occupational specialty, albeit without the help of the ADA. He was then no longer 'furloughed' or 'terminated' and therefore he is ineligible for the first-hire preference under the terms of the statute, the legislative intent, and the agency interpretation." Memorandum Opinion and Order dated February 8, 1990. We reject the district court's analysis for the following reasons.

First, the EPP itself imposes no limits on the length of a protected employee's first-hire right and we do not believe the statutory restrictions on financial assistance should be engrafted on the first-hire provisions. ³ In restricting the assistance payments, Congress acted to "limit[ ] as much as possible the potential expenditure of Government funds," S.Rep. No. 95-631 95th Cong. 2d Sess. 115 (1978), and to ensure that it created no disincentive to reemployment, see id. at 117 ("The committee intends that the percentages chosen will result in compensation payments that are less than the employees' after-tax income in order to preserve maximum incentives for employees to secure comparable work."), quoted in Alaska Airlines, 480 U.S. at 694, 107 S.Ct. at 1485. These concerns do not support similarly limiting a pilot's first-hire right. The first-hire provisions impose no additional expense on the government and in fact were viewed by Congress as a means of relieving the financial burden created by the monthly assistance payments. See S.Rep. No. 95-631, 95th Cong.2d Sess. 116 (1978) ("The interactions of these provisions will decrease the cash payments required under the program."); 124 Cong.Rec. 10,765 (1978) (Senator Zorinsky, seeking to amend the bill to provide a hiring preference only "instead of affording the relief of compensation from the pockets of...