employment, § 43(d)(2). But this is evidence that the monthly assistance program was regarded as the second line of attack, not that the. right of first hire could not stand alone. As illustrated by the current inactive status of the compensation program, the first-hire provision is capable of serving as the sole means of employee protection". Id. at 694 n.18.
See also Long v. Trans World Airlines, Inc., 913 F.2d 1262, 1266 n.2 (7th Cir. 1990) (contrasting the two provisions and stating that "the absence of a similar qualification in the Employee Protection Program's first-hire provisions further suggests that Congress intended them to serve a broader remedial purpose"); Long v. Trans World Airlines, 761 F. Supp. 1320, 1330 n.13 (N.D. Ill. 1991) ("Here, where a private cause of action has been judicially implied, Long, 913 F.2d at 1267, and where the statute thus reflects no intent to limit the nature of damages. . .") (emphasis added).
Powerful though these arguments are, it is this Court's duty to implement the mandate of the Court of Appeals. Similarly, the Court is without authority at this time to order the defendant to hire Mr. McDonald. At our initial trial, this Court ruled that this equitable remedy was unavailable to the plaintiff, since the Court believed at that time, and found, that there was an adequate remedy at law. The plaintiff took a proper exception to this ruling, but thereafter lost his right to appeal for technical noncompliance with the CAMP program.
As the case stood after trial in the District Court, there was no reviewable error, because the plaintiff did have an adequate remedy at law. Monetary damages are an adequate remedy at law when the effect of awarding such damage would have placed the injured person in the same position as he would have been, insofar as money can do so, if his statutory rights had been honored. Racich v. Celotex Corp., 887 F.2d 393, 396 (2d Cir. 1989) (". . . compensatory damages are designed to 'have the wrongdoer make the victim whole', commensurate with the loss or injury actually sustained . . ."); William W. Wrigley, Jr., Co. v. Waters, 890 F.2d 594, 604 (2d Cir. 1989) (same). Cf. Texas & Pacific Railroad Co. v. Rigsby, 241 U.S. 33, 39, 60 L. Ed. 874, 36 S. Ct. 482 (1916) ("A disregard of the command of a statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover damages from the party in default is implied, according to a doctrine of the common law . . .").
What position would this be? If hired, our jury found that McDonald would have worked until age 60 at the foreseeable salary and pension increases of a Piedmont pilot. Its verdict represents the present value of his earnings and benefits less the earnings and benefits to be received from Air Berlin.
Clearly, as a practical matter, once hired by Piedmont by Court order, McDonald would have become one of a large army of pilots covered by a collective bargaining agreement which included respect for job seniority, and discharge only for disability or cause, with full access to grievance procedures. As the jury found, once so protected he would have worked not for 72 months, but until age 60.
Had the Court known that compensatory damages would be limited to 72 months, we would have been required by the facts of the case to find that there was no adequate remedy at law, and the equitable remedy of job "reinstatement" should have been ordered. Equitable relief ought not to be denied except where there is a prompt, fair and full remedy at law. E.g., Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 917-18 (2d Cir. 1986).
Based upon what we know now (and at least in theory should have known then) this Court would certainly order Piedmont (and its successor USAir) to hire McDonald as of the date on which it breached its statutory duty to do so, as our jury found. The Court declines to do so now, based on a perceived lack of power. Our hint that a motion should be made in the Court of Appeals to recall the mandate has fallen, apparently, on deaf ears. This Court will comply with the mandate.
Counsel have been unable to agree on the proper amount of a damage award for the allowable 72 month period. The Court finds that to comply with the Court of Appeals' mandate, the Final Average Earnings as found by Mr. Akins must be calculated based on Mr. McDonald's projected earnings between the years 1985 and. 1987, when his hypothetical career with Piedmont is now assumed to have abruptly ended.
Thus, the Court concludes, with the defendant, that Mr. McDonald's computed damages must amount to $ 409,459.70.
Counsel agree that prejudgment interest through April 14, 1992 equals $ 61,566.58. The Clerk shall enter a final judgment in the amount of $ 471,026.20, together with interest on 409,459.70 through June 4, 1992 of $ 3,696.50, amounting to a total judgment of $ 474,722.78 and costs to be taxed.
Dated: June 4, 1992
White Plains, New York
Charles L. Brieant