EEOC v. Baltimore and Ohio R. Co.

• Citation: 557 F. Supp. 1112
• Decision Date: 17 February 1983
• Docket Number: Civ. A. No. N-74-637.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. The BALTIMORE AND OHIO RAILROAD COMPANY, and the Chesapeake and Ohio Railway Company, Defendants.
• Court: U.S. District Court — District of Maryland

557 F. Supp. 1112

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. The BALTIMORE AND OHIO RAILROAD COMPANY, and the Chesapeake and Ohio Railway Company, Defendants.

Civ. A. No. N-74-637.

United States District Court, D. Maryland.

February 17, 1983.

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Michael N. Martinez, Michael A. Middleton, Daniel M. Williams, Jr., Paul D. Brenner, John K. Light, E.E.O.C., Washington, D.C., for plaintiff.

Thompson Powers, Ronald S. Cooper, Morgan D. Hodgson, Ellen Kohn, and Steptoe & Johnson, Washington, D.C., and Thomas L. Samuel, Gen. Atty., Baltimore, Md., for defendants.

MEMORANDUM

NORTHROP, Senior District Judge.

This action was first filed by the Secretary of Labor, United States Department of Labor (Secretary), on June 19, 1974. In the complaint the Baltimore and Ohio Railroad Company (B & O) and the Chesapeake and Ohio Railway Company (C & O) were charged with violating Section 4 of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (ADEA or the Act). The Secretary contended (1) the defendants unlawfully terminated 142 employees by retiring them based on their age-related entitlement to a pension and (2) the defendants unlawfully amended their pension plans in 1972 by lowering the compulsory retirement age for their employees from age 65 to age 62.¹ After a bench trial, this Court found that although the defendants had committed prima facie violations of the Act, their conduct fell within the exemption provided by Section 4(f)(2). This Court also determined that the defendants were protected by Section 10 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 259 (1970). See Marshall v. Baltimore and Ohio R. Co., 461 F.Supp. 362 (D.Md.1978).

The United States Court of Appeals for the Fourth Circuit affirmed this Court's finding that the plaintiff had presented a prima facie case, but reversed the decision that the defendants' behavior was exempt under Section 4(f)(2) of the ADEA and by the Portal-to-Portal Act. The case was then remanded. See Equal Employment Opportunity Commission v. Baltimore and Ohio Railroad Co., 632 F.2d 1107 (4th Cir. 1980), cert. denied, 454 U.S. 825, 102 S.Ct. 113, 70 L.Ed.2d 98 (1981).

Presently under review is defendants' motion to vacate the Fourth Circuit's decision. See Rules 60(b)(5) and (6) F.R.Civ.P. In support of the motion, the defendants cite two newly decided Supreme Court decisions, Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), and American Tobacco Co. v. Patterson, 456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982), and submit they invalidate the Fourth Circuit's reversal.

The plaintiff agrees with the defendants that Rules 60(b)(5) and (6) permit, in a procedural sense, this Court to entertain the motion to vacate. The parties differ, however, on the substantive issue; to wit, whether the Fourth Circuit's decision comports with Swint and Patterson.

Federal Rules 60(b)(5) and (6) provide that "the Court may relieve a party ... from a final judgment, or order" if "a prior judgment upon which it is based has been reversed or otherwise vacated" clause "5" or for "any other reason justifying relief from the operation of the judgment" clause "6".

Under the more traditional view, clause (5) appears to be inapplicable in this case. As Professor Moore described the Rule:

"... it 60(b)(5) does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding."

7 Moore's Federal Practice, ¶ 60.263, at 282.

Instead, for a decision to have been "based" on a prior judgment which was subsequently reversed or vacated, the prior judgment must have been a necessary element to that decision. Morris v. Travisano, 499 F.Supp. 149, 154 (D.R.I.1980). This principle is usually viewed narrowly so that a Rule 60(b)(5) motion to vacate will be entertained only when a decision actually relied upon was affected in a "res judicata or collateral estoppel-like" manner by the subsequent reversal. Marshall v. Board of Education, Bergenfield, New Jersey, 575 F.2d 417, 424 (3rd Cir.1978). See Coalition of Black Leadership v. Cianci, Jr., 570 F.2d 12 (1st Cir.1978); Title v. United States, 263 F.2d 28 (9th Cir.), cert. denied, 359 U.S. 989, 79 S.Ct. 1118, 3 L.Ed.2d 978 (1959); Collins v. City of Wichita, Kansas, 254 F.2d 837 (10th Cir.1958); Berryhill v. United States, 199 F.2d 217 (6th Cir.1952); Loucke v. United States, 21 F.R.D. 305 (E.D.Pa.1957).

Similarly, clause (6) is usually unavailable as a means of recourse except in the most "extraordinary" circumstances. Ackermann v. United States, 340 U.S. 193, 202, 71 S.Ct. 209, 213, 95 L.Ed. 207 (1950). A compelling justification is required for its use. 7 Moore's Federal Practice, ¶ 60272, at 353. Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338 (9th Cir.1981); Collins v. City of Wichita, Kansas, supra. To be sure, Rule 60(b)(6) is not an alternative to or substitute for a timely and proper appeal. Annat v. Beard, 277 F.2d 554 (5th Cir.) cert. denied 364 U.S. 908, 91 S.Ct. 270, 5 L.Ed.2d 223 (1960); See Parks v. U.S. Life and Credit Corp., 677 F.2d 838 (11th Cir. 1982); see also Nunnery v. Barber, 23 F.R. Serv.2d 232 (4th Cir.1977); Hall v. Warden, Maryland Penitentiary, 364 F.2d 495 (4th Cir.1966).

Nevertheless, either expressly or by inference, courts have interpreted Rules 60(b)(5) and (6) as enabling District Courts to review matters when justice would be served. Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538 (2d Cir. 1963); United States v. Karahalias, 205 F.2d 331, 333 (2d Cir.1953). Intervening and supervening Supreme Court decisions can often provide adequate justification. Patterson v. American Tobacco Co., 634 F.2d 744, 746 n. 1 (4th Cir.1980) (en banc) vacated on other grounds sub nom. American Tobacco Co. v. Patterson, 456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982); Theriault v. Smith, 523 F.2d 601 (1st Cir.1975); Bailey v. Ryan Stevedoring Co., Inc., 443 F.Supp. 899 (M.D.La.1978), rev'd on other grounds, 613 F.2d 588 (5th Cir.1980), cert. denied, 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 613 (1981); Cf. Class v. Norton, 507 F.2d 1058 (2d Cir.1974); Griffin v. State Board of Education, 296 F.Supp. 1178 (E.D. Va.1969); but cf. Nunnery v. Barber, supra.²

Considering the parties dual recognition of this Court's power to entertain the defendants' motion to vacate by examining the holdings of Swint and Patterson, and the broad discretion to which District Courts are generally entitled when deciding Rule 60(b) motions, particularly in instances such as this where matters affecting great numbers of people are concerned and justice would be served, Hensley v. Chesapeake & Ohio Railway Co., 651 F.2d 226, 229 (4th Cir.1981); Jones v. Jones, 217 F.2d 239 (7th Cir.1954), this Court finds it possesses the authority to proceed to consider the specific impact of Swint and/or Patterson on the Fourth Circuit's decision.³

FACTS

The factual events which underly this dispute were discussed at length in Marshall v. Baltimore and Ohio R. Co., supra. Because they weigh so heavily in this decision, they will again be reviewed herein.

During the years 1965-70, the defendants' financial position was declining. Like the railroad industry in general, and particularly in the Northeast corridor, the demand for defendants' freight services waned, while costs steadily increased. Penn Central Railroad buckled in June, 1970, and went into receivership, sending a not so subtle warning to railroad management throughout the country that preventative measures should be taken.

Mr. Hays T. Watkins became President and Chief Executive Officer of the defendant railroads in April, 1971, and began the difficult process of streamlining their operations.⁴ To eliminate unnecessary expenses, Mr. Watkins established two priorities: the abandonment of unprofitable branch lines and a reduction in the size of the work force.

The goal of reducing the size of the staff caused railroad management to undertake a review of both the contract (union) and non-contract (supervisory personnel) ranks. Unexpectedly, however, before any final decisions were made, a nationwide coal strike began. Although defendants were aware that the contract between the United Mine Workers Union and the coal operators would expire on September 30, 1971, they did not anticipate a strike, since there had been none of this nature since 1949. Moreover, early indications were that the parties would be able to agree on a contract.

The coal strike represented a severe financial threat to the defendants. Coal constituted approximately 50% of their traffic and 35-40% of their operating revenue. Since it appeared that the strike would be protracted, defendants believed they should take immediate action to reduce their expenses.

Earlier, in September, 1971, Mr. Norman Halpern, Assistant Vice President-Executive Department ordered that no new non-contract employees could be hired without the specific approval of Mr. Watkins. Other methods for reducing the size of the work force were also discussed. Most were rejected for a variety of legitimate reasons.

Nevertheless, once the strike began, railroad supervisors began to expedite the force-reduction process. Many hours were spent deliberating so that a fair and humane program could be developed. The interests of the employees and their families were foremost among management's many concerns. The first conclusion they reached was that a reduction of 20% of their contract work force was necessary. These workers comprised 93% of defendants' employees. Management also decided that a comparably drastic reduction in the non-contract group was required. Other employees would have to be furloughed.

Preliminarily, all poor performers were eliminated, but this resulted in a meager 1% reduction. The next step...