The opinion of the court was delivered by: CHARLES L. BRIEANT
By motion fully submitted on April 21, 1992, plaintiff Paul F. McDonald moves this Court for additional relief on remand. As the disposition of this motion is controlled entirely by prior proceedings in the case, the Court will briefly summarize the history of this litigation, familiarity with which is assumed.
Plaintiff McDonald is an airline pilot. He was employed in that capacity by Air New England until that carrier's demise in 1981. In late 1981, McDonald attempted to secure alternative employment with defendant Piedmont Airlines
by exercising his statutory "first right of hire" under 49 U.S.C. App. § 1552(d)(1) (West 1992). This provision, passed as part of the Airline Deregulation Act of 1978 (the "ADA"), generally granted certain employees of airlines adversely affected by deregulation a right to be hired first by surviving air carriers. Piedmont, however, refused to hire McDonald as a pilot, despite the fact that he met all relevant qualifications for that position. Accordingly, on November 15, 1984, McDonald filed suit against Piedmont, alleging that Piedmont had violated the first-hire provision of the Act.
After ruling that the Act created an implied private right of action, McDonald v. Piedmont Aviation, 625 F. Supp. 762 (S.D.N.Y. 1986), and that McDonald's claim was timely brought, McDonald v. Piedmont Aviation, 695 F. Supp. 133 (S.D.N.Y. 1988), this Court conducted a jury trial of the remaining issues in the case. The jury rejected Piedmont's pretextual excuses for refusing to hire McDonald, and awarded McDonald compensatory damages in the amount of $ 2,226,920.00 for breach of the statutory duty. This sum represented the difference between Mr. McDonald's projected lifetime earnings and benefits at Air Berlin, the non-certificated carrier which employed him after his rejection by Piedmont, and those he would have received had Piedmont complied with the law by offering him a job. A final judgment in the case was entered on March 30, 1990.
Significantly, this Court had rejected at trial plaintiff's request for an instruction apprising the jury that it could compel the defendant to hire Mr. McDonald, reasoning that the equitable remedy of "reinstatement", or compelled hiring, would not be granted when an adequate remedy at law existed in the form of money damages, capable of making plaintiff whole. Although defendant disputes the point, the Court believes that the plaintiff took an adequate objection to the Court's failure so to charge the jury. See Ex. K to Kohn Affidavit at p. 717
Defendant then appealed to the United States Court of Appeals for the Second Circuit. The plaintiff cross-appealed, but the Court of Appeals dismissed the cross-appeal for failure to comply with certain procedural requirements relating to the CAMP
program. Ex. D to Kohn Affidavit. By order dated April 11, 1991, a panel of that Court affirmed the finding of liability, but reversed on damages. McDonald v. Piedmont Aviation, Inc., 930 F.2d 220 (2d Cir.), cert. denied, 116 L. Ed. 2d 460, 112 S. Ct. 441 (1991). The panel held in essence that the 72 month limitation period on temporary economic assistance payments contained in another subsection of the statute served to limit the damages recoverable for violation of the first right of hire; that is, although Piedmont should have hired the plaintiff, indefinitely, as a full-time pilot in January 1982, for a period limited only by compulsory retirement at age 60, he could recover lost wages damages only for the period from 1982 to 1988. Id. at 227. The Court of Appeals then issued the following instructions to this Court:
"We affirm the jury's determination of liability but reverse the award of damages and remand for further proceedings. On remand, the district court may, in its discretion, compute damages for 72 months from the evidence given by Daniel W. Akins, McDonald's expert, which the jury credited, and use the remittitur device to order a new trial on damages unless the plaintiff accepts the reduced sum, as calculated for the allowable 72 months". Id.
McDonald then petitioned the Supreme Court of the United States for a writ of certiorari. By order dated November 18, 1991, that Court denied the petition. Ex. G to Kohn Affidavit.
On remand to this Court, the plaintiff now moves for additional relief, including, in the alternative, an order directing the defendant to hire McDonald, a new trial on damages or restoration of the full jury verdict. The defendant opposes the motion, contending that this Court must enter judgment against it for damages, limited to the allowable 72 month period, in accordance with the mandate of the Court of Appeals. These points will be discussed seriatim.
In advancing this argument, McDonald also points out that the District Court opinion which our Court of Appeals quoted to support its construction of the relevant subsections of the statute has since been reversed. Crocker v. Piedmont Aviation, Inc., 741 F. Supp. 241 (D.D.C. 1990), rev'd, 933 F.2d 1024 (D.C. Cir. 1991). Although Crocker involved the question of whether a pilot's subsequent employment by a noncertificated carrier extinguished his first right of hire by a covered carrier, the relationship between the remedies contained in § 1552, the Employee Protection Program of the ADA, was a critical issue in that litigation. Addressing the argument which found favor with the Second Circuit in McDonald, e.g. that the 72 month limitation period on monthly assistance payments, contained in one subsection of § 1552, served to delimit the first right of hire, contained in another subsection of § 1552, the D.C. Circuit held that:
"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. In restricting the assistance payments, Congress acted to "limit[ ] as much as possible the potential expenditure of Government funds," . . . and to ensure that it created no disincentive to reemployment. . . . 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. . . . Further, the prospect of losing those rights upon employment by a noncertificated airline might discourage a displaced employee from seeking interim employment such as that taken by Crocker and prompt him instead to wait for an opportunity to use the first-hire right to obtain employment with an established, formerly certificated airline. That result would frustrate the legislative intent to encourage reemployment of displaced protected employees and actually increase the number of monthly payments, thereby exacerbating the drain on the public fisc. For these reasons we reject the district court's conclusion that the financial assistance restrictions should be applied to the first-hire right". Id. at 1026-27 (citations omitted).
In two footnotes, the Crocker panel also reasoned that the absence of elicit statutory restrictions on the first-hire right, considered in light of "the empress statutory [time] restrictions on the financial assistance benefits", supported its result id at 1026 n.3, and ...