581 F.2d 132 (7th Cir. 1978), 77-1584, Barrett v. Grand Trunk Western R. Co.

Docket Nº:77-1584.
Citation:581 F.2d 132
Party Name:Donald R. BARRETT, Plaintiff-Appellee, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant-Appellant.
Case Date:July 17, 1978
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 132

581 F.2d 132 (7th Cir. 1978)

Donald R. BARRETT, Plaintiff-Appellee,

v.

GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant-Appellant.

No. 77-1584.

United States Court of Appeals, Seventh Circuit

July 17, 1978

Argued Jan. 12, 1978.

Rehearing and Rehearing En Banc Denied Sept. 21, 1978.

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Leonard S. Goslawski, Chicago, Ill., for defendant-appellant.

William H. Berger, U. S. Dept. of Labor, Atlanta, Ga., for plaintiff-appellee.

Before PELL and TONE, Circuit Judges, and GRANT, Senior District Judge. [*]

PELL, Circuit Judge.

Plaintiff-appellee Donald R. Barrett was employed by defendant-appellant Grand Trunk Western Railroad Company as a locomotive fireman on October 25, 1963. He worked in that position until May 6, 1964, when he was severed from Grand Trunk's employ pursuant to the provisions of the Award of Arbitration Board No. 282. 1 Under the terms of that award, firemen, such as Barrett, hired less than two years prior to the award's effective date ("C-2" firemen), could be separated from a carrier's payroll with a lump sum separation allowance, and have "all of their employment and seniority rights and relations terminated. . . ." On April 26, 1965, Barrett was again employed by Grand Trunk, as a switchman. He worked in that capacity until January 20, 1966, when he was inducted into the United States Marine Corps. On January 12, 1968, he was honorably discharged from the Marine Corps.

Thereafter, he sought reinstatement as a Grand Trunk employee, and received it, as a switchman, on March 8, 1968, with a switchman seniority date of April 26, 1965. This much, the parties agree, was clearly his due under the Military Selective Service Act, now codified at 38 U.S.C. § 2021 Et seq. 2 The Act provides, on conditions indisputably met here, that any person "who leaves a position . . . in the employ of any employer in order to perform (military) training and service" "shall . . . be restored by such employer . . . to such position or to a position of like seniority, status, and pay." 38 U.S.C. § 2021(a)(2)(B)(i). Subsection (b)(2) adds the following:

It is hereby declared to be the sense of the Congress that any person who is restored to or employed in a position in accordance with (Inter alia, the language just quoted) should be so restored or reemployed in such manner as to give such person such status in the person's employment as the person would have enjoyed if such person had continued in such employment continuously from the time of such person's entering the Armed Forces until the time of such person's restoration to such employment, or reemployment.

Barrett claims that restoration to the job of switchman without loss of seniority was an inadequate satisfaction of his rights under the Act. He points out that in May 1966 Grand Trunk found itself in need of additional firemen. Apparently preferring to hire those with experience in the position to people without it, Grand Trunk canvassed many previously severed "C-2" firemen to determine their interest in becoming Grand Trunk firemen again. Only those "C-2" firemen predetermined to be unemployable or medically unfit, or who received unsatisfactory performance ratings when

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severed in 1964 (neither of which factors would have applied to Barrett), 3 or who were known to be in military service were not canvassed. Barrett thus asserts that but for his military service, he would have been canvassed and given the opportunity to become a fireman at that time, and that this opportunity should have been made available on his return from the Marines, with retroactive seniority. 4

Grand Trunk did not accede to Barrett's several requests for such treatment, and he became a fireman only on August 15, 1970, when his application for transfer, made pursuant to a generally posted vacancy announcement, was accepted. He brought this lawsuit to obtain his "proper" seniority date and back pay, and has been represented therein by the United States Attorney. 38 U.S.C. § 2022.

The district court granted Barrett's motion for "Partial Summary Judgment (On Issue of Liability)" on March 22, 1977. On March 25, the court issued an order Nunc pro tunc as of March 22, ordering Grand Trunk to adjust its records by giving Barrett the earlier seniority date he sought, and ordering both parties either to stipulate or to proceed with discovery on the question of the amount of back pay.

Grand Trunk has appealed, invoking (without traverse by Barrett) 28 U.S.C. § 1291 as a jurisdictional basis. Our obligation to satisfy ourselves about our jurisdiction in each case brought before us has required us to look beyond the parties' agreement on this point. Because a "final decision" within the meaning of § 1291 "is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment," Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945), the district court's order, which expressly leaves the question of back pay for future resolution, is not a final appealable order. See The Palmyra, 23 U.S. (10 Wheat.) 502, 6 L.Ed. 375 (1825); Baetjer v. Garzot Fernandez, 329 F.2d 798 (1st Cir. 1964); Taylor v. Board of Education of the City School District of the City of New Rochelle, 288 F.2d 600, 602 (2d Cir. 1961), Cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339; 9 Moore's Federal Practice P 110.11 at 138 (1975).

Apparently recognizing this fact, Grand Trunk moved the district court to...

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