Byrne v. Buffalo Creek R. Co.

• Decision Date: 18 June 1985
• Docket Number: D,No. 973,973
• Citation: 765 F.2d 364
• Parties: 119 L.R.R.M. (BNA) 3029, 103 Lab.Cas. P 11,570 Gerald W. BYRNE, Plaintiff-Appellant, v. BUFFALO CREEK RAILROAD COMPANY and John J. Hayes, as Chairman of Local 12, a Local Unit of United Transportation Union, Defendants-Appellees. ocket 84-9041.
• Court: U.S. Court of Appeals — Second Circuit

Page 364

765 F.2d 364

119 L.R.R.M. (BNA) 3029, 103 Lab.Cas. P 11,570

Gerald W. BYRNE, Plaintiff-Appellant, v. BUFFALO CREEK RAILROAD COMPANY and John J. Hayes, as

Chairman of Local 12, a Local Unit of United

Transportation Union, Defendants-Appellees.

No. 973, Docket 84-9041.

United States Court of Appeals, Second Circuit.

Argued April 11, 1985.

Decided June 18, 1985.

Michael Beilewech, Buffalo, N.Y. (Magavern & Magavern, Buffalo, N.Y., of counsel), for plaintiff-appellant.

Courtland R. LaVallee, Buffalo, N.Y. (Moot & Sprague, Buffalo, N.Y., of counsel), for defendant-appellee Buffalo Creek R. Co.

Robert Boasberg, Boston, N.Y., for defendant-appellee John J. Hayes.

Before LUMBARD, VAN GRAAFEILAND and CARDAMONE, Circuit Judges.

LUMBARD, Circuit Judge:

This appeal requires us to decide the rare question, in this circuit, of whether a litigant should be deprived, after ten years of litigation, of a judgment for wrongful discharge and unfair representation because during litigation delays, for which the district court must bear the major responsibility, the Supreme Court changed the law regarding the applicable statute of limitations for the bringing of his suit.

Gerald W. Byrne began working for the Buffalo Creek Railroad Company in 1961, first as a fireman-engineer and then as an engineer. In February 1969, he entered the hospital, suffering from appendicitis. While receiving treatment, he encountered complications, including a massive hemorrhage, which required him to have a total colectomy and a permanent ileostomy. As a result, he missed several months of work.

After recuperating, Byrne, with the approval of his physician, sought to return to his job at Buffalo Creek, but he was notified on July 22, 1969 that his services were terminated. His attempts thereafter to gain reemployment were unsuccessful and his union, Local 12 of the United Transportation Union, failed to press his claim. Buffalo Creek's final affirmation of Byrne's termination occurred in 1970.

On July 8, 1975, Byrne brought suit in the Western District against Buffalo Creek and John Hayes, as chairman of the union, alleging that the railroad had wrongfully discharged him and that the union had failed to represent him fairly.

Byrne's suit was not reached for trial until June 1979. A bench trial was completed on June 8th. Eleven days later, on June 19, Byrne, according to post-trial submissions, was reinstated by Buffalo Creek's successor-in-interest, Consolidated Rail Corporation, for the obvious reason that the railroad must have foreseen a decision in Byrne's favor.

The district court, however, did not render its decision until April 12, 1982. It held that Byrne's suit was timely under Abrams v. Carrier Corp., 434 F.2d 1234, 1252-53 (2d Cir.1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971), in which we held that a six-year statute of limitations applied in cases of this sort, and that both the railroad and the union were liable for lost wages from July 22, 1969 to March 31, 1977 in the tentative amount of $101,720.34, plus attorney's fees. In calculating lost wages, the court excluded much of the period from April 1970 to July 1975, during which Byrne inexplicably delayed bringing suit. Byrne v. Buffalo Creek R. R., 536 F.Supp. 1301 (W.D.N.Y.1982).

The court held the matter open, however, "to allow the parties to submit further argument concerning damages." In particular, the court sought guidance as to the amount damages should be reduced because of the railroad's rehiring of Byrne and because of Byrne's earnings while not working for the railroad. During this further delay, the Supreme Court decided Bowen v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983), concerning apportionment of damages between the employer and the union in cases like this. Subsequently, the court asked the parties to consider the relevancy of Bowen, and Buffalo Creek moved for reconsideration and modification of the April 12, 1982 order.

During the ensuing period of further delay before another district court ruling, the Supreme Court decided on June 8, 1983, in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), that a six-month statute of limitations governs wrongful discharge and unfair representation cases.

In 1984, we held, in Welyczko v. U.S. Air, Inc., 733 F.2d 239 (2d Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984), that DelCostello had retroactive effect. Finally, on November 30, 1984, the district court held that Welyczko mandated the application of DelCostello to all pending wrongful discharge and unfair representation cases, and, accordingly, dismissed Byrne's complaint.

It is true that a court, as a general rule, must apply the law in effect at the time it renders its decision. Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). It is also true that in DelCostello the Supreme Court applied the new six-month statute of limitations for wrongful discharge and unfair representation claims to govern the case before it, indicating its intention that its ruling be given retroactive effect. Accordingly, in Welyczko, concluding that we were bound by the Supreme Court's prior decision, we held that the six-month statute of limitations applied retroactively. All but one of the other circuits which have considered the question have also concluded that DelCostello is to be applied retroactively. See Smith v. General Motors Corp., 747 F.2d 372, 374-75 (6th Cir.1984).

At the same time, it is well recognized that, in the interest of justice, courts may exclude certain cases from the retroactive application of a judicial decision. See Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969). In determining whether to do that, they consider three factors: 1) whether the judicial decision establishes a new principal of law; 2) whether retroactive operation would advance or inhibit the new ruling's effect; and 3) whether retroactive operation "could produce substantial inequitable results." See Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971) (quoting Cipriano, 395 U.S. at 706, 89 S.Ct. at 1900). Although we noted in Welyczko that the six-month statute of limitations for wrongful discharge and unfair representation cases ought to be applied retroactively without regard to the above three-factor analysis, neither that holding nor DelCostello itself foreclosed the possibility of there ever being a case in which, because of special circumstances, we would find that the retroactive application of the six-month statute of limitations would be inappropriate.

In this case, we are persuaded that considerations of equity require us not to apply DelCostello. We think to do otherwise would work a gross injustice because of the large amount of time and money the parties have already invested in this lawsuit, which Byrne filed nearly eight years prior to the Supreme Court's decision in DelCostello. Moreover, the district court must bear a great measure of responsibility for unexplained delays in deciding relatively simple issues. Even allowing the court the benefit of any doubt as to why such a suit should wait 4 years from inception to trial, we can imagine no good reason for a delay of almost three more years before the court's opinion in April, 1982 on the merits of Byrne's claim.

A plaintiff such as Byrne is seldom situated to be able to press such suits. He must rely first on his union which failed him in this case, then he must find counsel willing to take such a case on a contingency fee basis, and then he must look to the court to give his case reasonable attention. To penalize Byrne because, during the inexcusable delays, the law was changed would be to deprive him of compensation for substantial damages. After the trial in June 1979, he should have had a judgment no later than the end of that year, with an appeal addressed to, and decided upon, the merits in 1980.

We have examined all the decisions which have dismissed suits based on a retroactive application of DelCostello, and we can find no case where the circumstances present any situation comparable to that faced here by Byrne. In Welyczko, the lawsuit was dismissed on a motion for summary judgment and prior to a decision on the merits. 733 F.2d at 240. Similarly, the other circuits that have applied DelCostello retroactively to dismiss claims have done so only in cases where the issue arose prior to commencement of trial and, in most cases, within a year of the complaint's filing. See Graves v. Smith's Transfer Corp., 736 F.2d 819 (1st Cir.1984); Perez v. Dana Corp., 718 F.2d 581 (3d Cir.1983); Murray v. Branch Motor Express Co., 723 F.2d 1146 (4th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 292, 83 L.Ed.2d 228 (1984); Edwards v. Sea-Land Service, Inc., 720 F.2d 857 (5th Cir.1983); Smith v. General Motors, 747 F.2d 372 (6th Cir.1984); Lincoln v. District 9, Int'l Ass'n of Machinists & Aerospace Workers, 723 F.2d 627 (8th Cir.1983). Here, there has been nearly ten years of costly litigation and a full trial on the merits which resulted in a determination that Byrne is entitled to damages. These extraordinary circumstances compel us to carve out a limited exception to our holding in Welyczko that DelCostello applies retroactively. ¹

We reverse the judgment of the district court and direct expedited and prompt consideration of the judgment to be entered against the railroad and the union. We retain jurisdiction. If there is any appeal from a judgment, we will expedite the appeal, upon application.

VAN GRAAFEILAND, Circuit Judge, dissenting:

One of the great strengths of the Second Circuit is the willingness of its able and respected district judges to accept the not-always-perfect leadership of this Court in our mutual effort to...