Sargent v. Columbia Forest Products, Inc.

• Decision Date: 16 January 1996
• Docket Number: No. 1298,D,1298
• Citation: 75 F.3d 86
• Parties: Bonnie SARGENT, Plaintiff-Appellant, v. COLUMBIA FOREST PRODUCTS, INC., Defendant-Appellee. ocket 94-9015.
• Court: U.S. Court of Appeals — Second Circuit

Page 86

75 F.3d 86

Bonnie SARGENT, Plaintiff-Appellant, v. COLUMBIA FOREST PRODUCTS, INC., Defendant-Appellee.

No. 1298, Docket 94-9015.

United States Court of Appeals,

Second Circuit.

Submitted Oct. 23, 1995.

Decided Jan. 16, 1996.

David F. Kelley, Hunter & Kelley, Orleans, Vermont (Michael Rose, St. Albans, Vermont, of counsel), for Plaintiff-Appellant.

Heather Briggs, Downs, Rachlin & Martin, Burlington, Vermont (Coddy Marx, of counsel), for Defendant-Appellee.

Before: LUMBARD and WINTER, Circuit Judges, and BATTS, ^* District Judge.

WINTER, Circuit Judge:

In March 1995, we affirmed Judge Parker's dismissal of Bonnie Sargent's complaint against her former employer, Columbia Forest Products, Inc. She now moves that we recall and modify our mandate based on claimed changes in Vermont law subsequent to our decision. We grant in part and deny in part.

BACKGROUND

Sargent worked for Columbia for over fifteen years before she was discharged in October 1992. During the course of her employment, her right arm was injured, and she sought worker's compensation. After surgery, she resumed "light duty" at Columbia. Sargent claims that she performed her work adequately, although she was occasionally absent, but was twice warned that she was working too slowly. On October 9, 1992, she was dismissed.

Columbia distributes a handbook to employees that sets forth disciplinary procedures for attendance problems. The handbook defines "unexcused" absences and states appropriate procedures for management to follow in addressing them. The handbook provides for graduated sanctions and states that termination is appropriate upon the tenth unexcused absence. Sargent claims that in the year prior to her dismissal, she had accumulated only seven absences considered by Columbia to be unexcused. However, the handbook contains a broad disclaimer regarding its binding effect. It states that it "may not be construed under any circumstances as a contract or a binding agreement." It further indicates that all employment decisions are left to "the discretion of management" and that "any policy [stated in the manual] may be ... disregarded whenever management determines it is in the best interest of the company."

Sargent initially filed her complaint in Vermont state court. Based on diversity jurisdiction, see 28 U.S.C. § 1332, Columbia removed the action to the federal district court under 28 U.S.C. § 1441(a). Sargent's amended complaint asserted the following claims: (i) breach of implied covenants of good faith and fair dealing, (ii) breach of implied contract, (iii) discharge in retaliation for the exercise of her rights under the Vermont Workers' Compensation Act, Vt.Stat.Ann. tit. 21 §§ 601 et seq., (iv) termination in violation of public policy, and (v) promissory estoppel based on the employee handbook.

Judge Parker granted Columbia's motion to dismiss the complaint. On appeal, Sargent pursued only the good faith/fair dealing, retaliatory discharge, and promissory estoppel claims. We affirmed by unpublished summary order on March 13, 1995. See Sargent v. Columbia Forest Prods., Inc., 52 F.3d 311 (2d Cir.1995). We held that Sargent was an at-will employee and, therefore, could not assert a claim based on implied covenants of good faith and fair dealing. We upheld dismissal of the retaliatory discharge claim because the Vermont workers' compensation On August 15, 1995, Sargent filed a petition for a writ of certiorari in the United States Supreme Court. Just prior to that filing, the Vermont Supreme Court decided Ross v. Times Mirror, Inc., 665 A.2d 580 (Vt.1995), a case involving the legal effect of disclaimers in employee handbooks. Just after the filing, the Vermont Supreme Court decided Murray v. St. Michael's College, 667 A.2d 294 (Vt.1995), which held that a private right of action exists for a discharge in retaliation for the assertion of workers' compensation rights. On October 2, 1995, the United States Supreme Court denied Sargent's petition for a writ of certiorari, see Sargent v. Columbia Forest Prods., Inc., --- U.S. ----, 116 S.Ct. 256, 133 L.Ed.2d 181 (1995).

                statute provided a statutory remedy for such an act--an action by the state attorney general--and, under Vermont law at the time, " '[w]here a statute confers a remedy unknown to common law, and prescribes the mode of enforcing it, that mode alone can be resorted to.' "  Winney v. Ransom & Hastings, Inc., 149 Vt. 213, 542 A.2d 269, 270 (1988) (quoting Thayer v. Partridge, 47 Vt. 423, 428 (1875)).   See Sargent, 52 F.3d 311, slip op. at 4.   We affirmed dismissal of the promissory estoppel claim because of the breadth and specificity of the disclaimer.   We thereafter denied Sargent's motion for rehearing.   Our mandate issued on May 10, 1995
                

On October 23, 1995, Sargent filed the instant motion to recall and modify our mandate with regard to the retaliatory discharge claim in light of Murray and the promissory estoppel claim in light of Ross.

DISCUSSION

Our power to recall a mandate is unquestioned. See generally 16 Charles A. Wright, Arthur R. Miller, Edward H. Cooper & Eugene Gressman, Federal Practice and Procedure § 3938 (1977). The power "apparently originated in the inherent power of all federal courts to set aside any judgment during the term of court at which it was entered." Id. at 276. It "exists as part of the court's power to protect the integrity of its own processes," Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir.1988), and is analogous to the power conferred on district courts by Fed.R.Civ.P. 60(b).

Amendments to the federal judicial code in 1948 extended this power beyond the current term of court, see 28 U.S.C. § 452, and we thus have the power to reopen a case at any time. Fine v. Bellefonte Underwriters Ins. Co., 758 F.2d 50, 53 (2d Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 86, 88 L.Ed.2d 70 (1985); Patterson v. Crabb, 904 F.2d 1179, 1180 (7th Cir.1990). See also 2d Cir.R. 27(c). However, this power is to be "exercised sparingly," Greater Boston Television Corp. v. FCC, 463 F.2d 268, 277 (D.C.Cir.1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972), and reserved for "exceptional circumstances." Fine, 758 F.2d at 53. The reason for parsimony in the exercise of our power to recall a mandate is the need to preserve finality in judicial proceedings. The Supreme Court has repeatedly underscored the sanctity of final judgments in our federal judicial system. "Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties." Baldwin v. Iowa State Traveling Men's Assoc., 283 U.S. 522, 525, 51 S.Ct. 517, 518, 75 L.Ed. 1244 (1931).

The exercise of diversity jurisdiction requires that we ascertain and apply governing state law at the time of decision. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Today, we are often aided in this endeavor by state statutes under which we may certify questions of state law to that state's highest court. See, e.g., Conn.Gen.Stat. § 51-199a (Connecticut Supreme Court certification statute); N.Y.Rules of Court § 500.17 (New York Court of Appeals certification statute). However, Vermont has no certification statute.

In our earlier decision, therefore, we had to predict how Vermont courts would rule with regard to retaliatory discharge claims like Sargent's. Based upon a seemingly clear canon of statutory construction barring an implication of a private right of action where a statute provides an express right, we One circumstance that may justify recall of a mandate is "[a] supervening change in governing law that calls into serious question the correctness of the court's judgment." McGeshick v. Choucair, 72 F.3d 62, 63 (7th Cir.1995); see also Bryant v. Ford Motor Co., 886 F.2d 1526 (9th Cir.1989), cert. denied, 493 U.S. 1076, 110 S.Ct. 1126, 107 L.Ed.2d 1033 (1990); Zipfel, 861 F.2d at 567-68; Davis v. Lawrence-Cedarhurst Bank, 206 F.2d 388, 389 (2d Cir.), cert. denied, 346 U.S. 877, 74 S.Ct. 130, 98 L.Ed. 384 (1953). However, under the strict standards governing the exercise of power to recall a mandate, "an alleged failure to correctly construe and apply the applicable state law does not constitute" by itself a circumstance justifying recall. Hines v. Royal Indem. Co., 253 F.2d 111, 114 (6th Cir.1958). Even where the law governing the disposition of a diversity case is unquestionably at odds with subsequent state court decisions, recall of the mandate is not necessarily justified.

                confidently predicted that the Vermont Supreme Court would not imply a private right of action under the workers' compensation statute.   Our prediction was incorrect.   After our mandate had issued, Murray held that employees have a private right of action against Vermont employers who discharge them in retaliation for filing a workers' compensation claim
                

The very nature of diversity jurisdiction leaves open the possibility that a state court will subsequently disagree with a federal court's interpretation of state law. However, this aspect of our dual justice system does not mean that all diversity judgments are subject to revision once a state court later addresses the litigated issues. Such a rule would be tantamount to holding that the doctrine of finality does not apply to diversity judgments.

DeWeerth v. Baldinger, 38 F.3d 1266, 1272-74 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 512, 130 L.Ed.2d 419 (1994). "Alleged erroneous rulings of law are generally not held to be sufficiently unconscionable to justify reopening a judgment not void when issued." Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964 (1st Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 160, 38 L.Ed.2d 106 (1973).

Nevertheless, a variety of factors lead us to conclude that a recall of the mandate is appropriate in this case....