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January 6, 1986

PAUL F. McDONALD, Plaintiff against PIEDMONT AVIATION, INC., Defendant

The opinion of the court was delivered by: BRIEANT


Brieant, J.

 In this action for damages and injunctive relief brought under 28 U.S.C. §§ 1331 and 1332, plaintiff Paul F. McDonald alleges that the defendant Piedmont Aviation, Inc. violated § 43 of the Airline Deregulation Act of 1978, 49 U.S.C. § 1552, by refusing to give hiring preference to the plaintiff as the statute purportedly would require. Defendant has moved to dismiss or, alternatively, to stay this action pending resolution of an unrelated case pending in the District Court of the District of Columbia, discussed below.

 Section 43, entitled "Employee Protection Plan," comprises two related but discrete provisions: the first provides for monthly support payments by the Government to eligible airline workers who had been dislocated by airline deregulation, while the second imposes a duty upon the airline industry to give preferential hiring consideration to those dislocated employees in order to obviate the need for the Government assistance. It is under this second provision that plaintiff claims his private right of action arises.

 In pertinent part, this subsection reads as follows:

"(d)(1) 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 10-year period beginning on October 24, 1978 shall have first right of hire, regardless of age, in his occupational speciality, by any other air carrier hiring additional employees which held a certificate issued under section 1371 of this title prior to October 24, 1978. Each such air carrier hiring additional employees shall have a duty to hire such a person before they hire any other person, except that such air carrier may recall any of its own furloughed employees before hiring such a person." 49 U.S.C. § 1552(d)(1).

 McDonald's claim arises out of Piedmont's decision in 1981 to hire airline personnel, specifically pilots, who allegedly did not qualify as "protected employees" to whom preferential hiring treatment was due under § 43. A protected employee, as defined by the statute, is a person other than a corporate director or officer who had been employed by a certified air carrier for at least four years prior to October 24, 1978. 49 U.S.C. § 1552(h)(1).

 In November 1981, following the cessation of Air New England where he had been employed as a pilot for at least seven years, McDonald applied to Piedmont for employment as a pilot. He identified himself as a protected employee. One month later, in December 1981, Piedmont hired a class of pilots consisting entirely of persons who, McDonald alleges, were not protected employees. Finally refused employment in May 1982, McDonald brings this action in an effort to enforce a "first right of hire" contained in § 43 that he contends Piedmont is statutorily obligated to honor.

 The defendant moves to dismiss this action on two grounds. Piedmont first argues that § 43 does not create a private right in the plaintiff as a rejected applicant to enforce the statute by injunctive or monetary relief, and that consequently his complaint fails to state a claim upon which relief can be granted. Piedmont also argues that whatever rights § 43 conferred had not ripened at the time McDonald filed his complaint in November 1984 because the Department of Labor regulations intended to implement the statute have not yet been put into effect.

 It is clear that this statute contains no express authorization of a private right of action by a person injured by a violation of § 43. Nevertheless, there remains for consideration whether a private remedy should be inferred from the language of the statute and Congressional intent.

 Our inquiry begins with analysis of the statutory language itself, see Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979), applying the criteria set forth in Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975). If this language fairly implies a right to specific and limited relief in federal court, no additional investigation into Congressional intent would be required. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 62 L. Ed. 2d 146, 100 S. Ct. 242 (1979) (construing § 215 of the Investment Advisors Act).

 In our analysis of the statutory language to ascertain Congressional intent, we must consider three factors: (1) whether the statute was enacted for the especial benefit of the class seeking Private enforcement, see Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 104 S. Ct. 831, 837, 78 L. Ed. 2d 645 (1984); Cannon v. University of Chicago, 441 U.S. 677, 690, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979); Cort v. Ash, 422 U.S. at 78; (2) whether the language relied upon creates a right or imposes a duty, or instead merely proscribes or directs certain conduct, see Universities Research Association, Inc. v. Coutu, 450 U.S. 754, 771, 67 L. Ed. 2d 662, 101 S. Ct. 1451 (1981); Touche Ross, supra at 569-71; and (3) whether the statute sets forth adequate mechanisms for enforcement and relief so as to obviate any need for private enforcement, see Daily Income Fund, supra at 837; Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 13, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981).

 The first and second factors are usually examined together and are given great weight. As the Supreme Court observed in Cannon when it held that Title IX created a private remedy:

"With the exception of one case, in which the relevant statute reflected a special policy against judicial interference, this Court has never refused to imply a cause of action where the language of the statute explicitly conferred a right directly on a class of persons that included the plaintiff in the case." Cannon, supra, 441 U.S. at ...

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