IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS; INTERNATIONAL ASSOCIATION OF MACHINISTS AND Case No. 03-1496 AEROSPACE WORKERS DISTRICT Chief District Judge Ambrose LODGE 141-M, Plaintiffs, v. USAIRWAYS, INC., Defendant. MOTION TO ENFORCE PRELIMINARY INJUNCTION AND NOW COME Plaintiffs, International Association of Machinists and Aerospace Workers; International Association of Machinists and Aerospace Workers District Lodge 141-M, by their undersigned counsel and file this Motion to Enforce Preliminary Injunction. In support of this Motion Plaintiffs represent: 1. On October 21, 2003, this Court issued a Preliminary Injunction against the Defendant, US Airways, Inc. ( USAirways finding that the subcontracting dispute between Plaintiffs and USAirways constituted a major dispute under the Railway Labor Act ( RLA, 45 U.S.C. 151 et seq. The Court issued an order enjoining and ordering USAirways to cease and desist any and all efforts to subcontract Airbus A319/320/321 airframe heavy maintenance work. (A copy of the Order is attached herein as Exhibit 1 On October 24, 2003, this Court denied USAirways motion for a stay of the injunction pending appeal. 2. On February 3, 2004, the United States Court of Appeals for the Third Circuit ( Third Circuit found that the subcontracting dispute between Plaintiffs and USAirways

constituted a minor dispute under the RLA, reversed the order of this Court and remanded the case to this Court for further proceedings consistent with its opinion. 3. On February 17, 2004, Plaintiffs filed a Petition for Rehearing En Banc with the Third Circuit. (Plaintiffs Petition is attached herein as Exhibit 2 Pursuant to Rule 41(d of the Federal Rules of Appellate Procedure, the filing of a petition for Rehearing En Banc stays the mandate until disposition of the petition... unless the court orders otherwise. 4. On February 6, 2004, USAirways counsel sent a letter to Plaintiffs counsel and stated that the Third Circuit opined that the subcontracting issue between the parties was a minor dispute under the RLA, and, based on that opinion, the Court ordered a lifting of the Preliminary Injunction. (Exhibit 3 USAirways counsel then stated that [p]ursuant to that Order, the mandate was issued on February 3, 2004. Based on the February 3, 2004 mandate issued by the Third Circuit, USAirways argued, the preliminary injunction has been reversed, and is no longer in effect. (emphasis in original. 5. In its letter to Plaintiffs counsel, USAirways counsel went on to state that USAirways intends to proceed in accordance with the Third Circuit s decision and has indeed begun subcontracting the Airbus A319/320/321 airframe heavy maintenance work. 6. Plaintiffs have timely filed a petition for Rehearing En Banc with the Third Circuit. As a result, the Third Circuit s mandate is stayed pending the outcome of the Plaintiffs petition. See Rule 41(d. 7. Because the Third Circuits mandate is stayed pursuant to Rule 41(d, its decision and order in the procedural posture of the present case is not finalized; therefore, this Court s Preliminary Injunction remains in effect. 2

WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter an Order enforcing its Preliminary Injunction issued on October 21, 2003 and enjoining and ordering USAirways to cease and desist any and all efforts to subcontract Airbus A319/320/321 airframe heavy maintenance work pending the outcome of Plaintiffs petition for Rehearing En Banc with the Third Circuit Court of Appeals. Respectfully Submitted, IRA L. GOTTLIEB MICHAEL J. HEALEY ROBERT A. BUSH HEALEY & HORNACK, P.C. GEFFNER & BUSH PA ID No. 27283 3500 West Olive Avenue 429 Fourth Avenue, 5 th Floor Suite 1100 Law & Finance Building Burbank, CA 91505-4657 Pittsburgh, PA 15219 818.973.3200 412.391.7711 David Neigus IAM International 9000 Machinists Place Upper Marlboro, MD 20772 Date: February 27, 2004 Attorneys for Plaintiffs 3

CERTIFICATE OF SERVICE I hereby certify that on this 27 th day of February, 2004 the foregoing Motion to Enforce Preliminary Injunction was served, via First Class Mail and e-mail, upon the following: Sidney Zonn, Esquire Littler Mendelson, P.C. Dominion Tower 625 Liberty Avenue, 26 th Floor Pittsburgh, PA 15222 Robert A. Siegel, Esquire O Melveny and Myers, LLP 400 South Hope Street, Suite 1500 Los Angeles, CA 90071 Tom A. Jerman, Esquire Rachel A. Shapiro, Esquire Aparna B. Joshi, Esquire O Melveny & Myers, LLP 1625 Eye Street, NW Washington, DC 20006 Kristine Grady Derewicz, Esquire Littler Mendelson, P.C. Three Parkway 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102 MICHAEL J. HEALEY, ESQUIRE

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS; INTERNATIONAL ASSOCIATION OF MACHINISTS AND Case No. 03-1496 AEROSPACE WORKERS DISTRICT Chief District Judge Ambrose LODGE 141-M, Plaintiffs, v. USAIRWAYS, INC., Defendant. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION TO ENFORCE PRELIMINARY INJUNCTION I. ARGUMENT Rule 41(d of the Federal Rules of Appellate Procedure states, in pertinent part, that [t]he timely filing of a... petition for rehearing en banc... stays the mandate until disposition of the petition... unless the court orders otherwise. 1 Within the procedural context of federal litigation, the mandate referred to in Rule 41(d is the official mode of communicating [the] judgment of an appellate court to [a] lower court.... Shakespeare Co. v. Silstar Corp. of America, Inc., 906 F.Supp. 997, 1002 (D.S.C. 1995 (internal quotation marks omitted. While issuance of the mandate is largely a ministerial function, it nonetheless establishes the law of the case, thus binding further action in the litigation by the district court. In re Chambers Development Co., Inc., 148 F.3d 214, 224 n.8 (3 rd Cir. 1998. The mandate returns jurisdiction to the district court and conveys the court of appeals directives. Id. The obligations of the 1 In Horton v. U.S., 244 F.3d 546, 551 (7 th Cir. 2001, the Court determined that filing a timely petition for rehearing in the court of appeals automatically stays the mandate until the petition for rehearing is decided... [and] delays the court of appeals last act in disposing of the case....

parties are not fixed until the Court s mandate issues.... Finberg v. Sullivan, 658 F.2d 93, 97 n.5 (3 rd Cir. 1981; see also, U.S. v. Segers, 271 F.3d 181, 184 n.4 (4 th Cir. 2001 (when a party files a petition for rehearing in the court of appeals, its mandate does not issue and its decision does not become final On February 3, 2004, the United States Court of Appeals for the Third Circuit ( Third Circuit issued a mandate ordering this Court to lift its Preliminary Injunction. On February 17, 2004, Plaintiffs filed a timely Petition for a Rehearing En Banc. While the Third Circuit s opinion determined that the parties dispute was a minor dispute under the Railway Labor Act ( RLA, 45 U.S.C. 151 et seq., the Court s judgment and order have not established the law of the case because its directive has been placed on hold pursuant to Rule 41(d. Procedurally, therefore, there has been no binding conveyance of the Third Circuit s directive. Its decision has not become final. Thus, pending a ruling on Plaintiffs rehearing petition or other order from the Third Circuit, the status and obligations of the parties in the present case have not been changed. Until the Third Circuit considers the Plaintiffs petition, the parties relationship must remain as it was before the Third Circuit issued its opinion on USAirways appeal; USAirways is enjoined from subcontracting Airbus A319/320/321 airframe heavy maintenance work. On account of the affect of Rule 41(d on the Third Circuit s mandate, this Court has no directive from the Third Circuit to change any of its previous rulings. As a result, any actions USAirways takes in furtherance of subcontracting Airbus A319/320/321 airframe heavy maintenance work is contrary to this Court s existing, procedurally uncontroverted Preliminary Injunction. USAirways may argue that the Third Circuit directed that its mandate be issued forthwith and therefore left no time for Plaintiffs to stay the mandate with their Petition for 2

Rehearing En Banc. The Third Circuit s unusual decision to include the adverb forthwith, however, cannot circumvent the intervening effect of Rule 41(a and (d. Rule 41(b states, in pertinent part, that the appellate court s mandate must issue 7 calendar days after the time to file a petition for rehearing expires.... (emphasis added. As a result, although the Third Circuit ordered its mandate to be issued forthwith, it could not have been issued until seven calendar days after Plaintiffs time to file their petition expired. To be sure, the inclusion of the adverbs immediately or directly would still not enable the Third Circuit s mandate to take affect before those seven calendar days expired. An argument to the contrary would circumvent Plaintiffs procedural due process rights codified in Federal Rules of Appellate Procedure 40 and 41. Moreover, USAirways itself recognizes the continuing effect of the Preliminary Injunction is controlled by the Third Circuit s stayed mandate. In its letter to Plaintiffs counsel, USAirways counsel stated that the Third Circuit s mandate was issued on February 3, 2004. Thus, the preliminary injunction has been reversed, and is no longer in effect. (Exhibit 3 to Plaintiffs Motion (emphasis in original. USAirways letter, however, conspicuously ignores Rule 41(d. As argued above, the Third Circuit s mandate could not have resulted in this Court s Preliminary Injunction being reversed, because the mandate the Third Circuit s directive is stayed pursuant to Rule 41(d. III. CONCLUSION For the foregoing reasons, the Third Circuit s mandate has been stayed pursuant to Rule 41(d, and its decision and order in the procedural posture of the present case is not finalized. Plaintiffs, therefore, move this Court to declare that this Court s Preliminary Injunction issued on October 21, 2003 remains in effect. 3

Respectfully Submitted, IRA L. GOTTLIEB MICHAEL J. HEALEY ROBERT A. BUSH HEALEY & HORNACK, P.C. GEFFNER & BUSH PA ID No. 27283 3500 West Olive Avenue 429 Fourth Avenue, 5 th Floor Suite 1100 Law & Finance Building Burbank, CA 91505-4657 Pittsburgh, PA 15219 818.973.3200 412.391.7711 David Neigus IAM International 9000 Machinists Place Upper Marlboro, MD 20772 Date: February 27, 2004 Attorneys for Plaintiffs 4

CERTIFICATE OF SERVICE I hereby certify that on this 27 th day of February, 2004 the foregoing Memorandum of Law in Support of Plaintiffs Motion to Enforce Preliminary Injunction was served, via First Class Mail and e-mail, upon the following: Sidney Zonn, Esquire Littler Mendelson, P.C. Dominion Tower 625 Liberty Avenue, 26 th Floor Pittsburgh, PA 15222 Robert A. Siegel, Esquire O Melveny and Myers, LLP 400 South Hope Street, Suite 1500 Los Angeles, CA 90071 Tom A. Jerman, Esquire Rachel A. Shapiro, Esquire Aparna B. Joshi, Esquire O Melveny & Myers, LLP 1625 Eye Street, NW Washington, DC 20006 Kristine Grady Derewicz, Esquire Littler Mendelson, P.C. Three Parkway 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102 MICHAEL J. HEALEY, ESQUIRE