RAILWAY LABOR EXECUTIVES v. METRO-NORTH COMMUTER RY. CO, No. 86 Civ. 6066 (RLC).

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Citation: 759 F. Supp. 1019
• Decision Date: 26 September 1990
• Parties: RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs, v. METRO-NORTH COMMUTER RAILROAD COMPANY, Defendant.
• Docket Number: No. 86 Civ. 6066 (RLC).

759 F. Supp. 1019

RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs,
v.
METRO-NORTH COMMUTER RAILROAD COMPANY, Defendant.

No. 86 Civ. 6066 (RLC).

United States District Court, S.D. New York.

September 26, 1990.

759 F. Supp. 1020

Alper & Mann (Lawrence M. Mann, Peter M.J. Reilly, of counsel), Washington, D.C., for plaintiffs.

Eikenberry Futterman & Schoolman (Richard Schoolman, of counsel), C. Sue Barnett, New York City, for defendant.

OPINION

ROBERT L. CARTER, District Judge.

The facts of this case are fully set out in the court's earlier opinion, reported as Railway Labor Executives' Association v. Port Authority Trans-Hudson Corp., 695 F.Supp. 124 (S.D.N.Y.1988) (Carter, J.), with which familiarity is assumed. In that opinion, the court found that the decision by Metro-North Commuter Railroad Company ("Metro-North") to require urinalysis drug screening at its employees' periodic and return-to-duty physical examinations gave rise to a "major dispute" under the Railway Labor Act ("RLA"). 45 U.S.C. §§ 151-188.¹ Consequently, the court enjoined Metro-North from requiring such testing prior to exhausting the notice, negotiation and mediation procedures of the RLA. 45 U.S.C. § 156. Metro-North now moves for an order vacating the injunction based on subsequent changes in decisional law. In particular, Metro-North contends that Consolidated Rail Corp. v. Railway Labor Executives' Association, 491 U.S. 299, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989) ("Conrail"), establishes that the dispute between the parties is a "minor dispute" within the exclusive jurisdiction of an RLA adjustment board. 45 U.S.C. § 153. The

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plaintiffs, on the other hand, argue that the injunction is res judicata and not subject to reconsideration. Alternatively, they seek an injunction compelling arbitration and forbidding implementation of the drug-testing program pending a decision by the adjustment board

Plaintiffs' contention that this court's earlier ruling is res judicata is incorrect. "Under res judicata, a final judgment on the merits precludes the parties ... from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). The court has not entered a final judgment in this case. Even assuming, however, that the injunction in this case has the effect of a "final judgment on the merits," Rule 60(b)(5), F.R.Civ.P., explicitly authorizes the court on motion to relieve such a judgment of its prospective effect. Rule 60(b)(5) states that "the court may relieve a party ... from a final judgment, order, or proceeding" if "it is no longer equitable that the judgment should have prospective application."

Regardless of how Metro-North's motion is characterized, consideration of the motion is not subject to res judicata but at most is guided by the more flexible principle of law of the case. See Kham & Nate's Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1355 (7th Cir.1990) (whether an order that is not final may be vacated is a question of the law of the case); Cox v. Wyrick, 873 F.2d 200, 202 (8th Cir.) (law of the case is applicable to Rule 60(b) proceeding), cert. denied, ___ U.S. ___, 110 S.Ct. 105, 107 L.Ed.2d 68 (1989); Ritter v. Smith, 811 F.2d 1398, 1404 (11th Cir.) (motion to vacate judgment implicates law of the case, not res judicata), cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987); cf. Toussaint v. McCarthy, 801 F.2d 1080, 1090, 1092 & n. 11 (9th Cir.1986) (discussing law of the case on motion to modify injunction), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). The doctrine of the law of the case "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). As applied to a court's own earlier rulings, the doctrine is discretionary and does not deprive the court of power to reconsider those rulings. Id. at 618, 103 S.Ct. at 1391. Rather, "a clear conviction of error on a point of law ... will prevail over `the law of the case.'" Zdanok v. Glidden Co., 327 F.2d 944, 952-53 (2d Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964); see Toussaint, supra, 801 F.2d at 1092 n. 11.

To be sure, a motion to modify or dissolve an injunction is not a substitute for a timely appeal from the order of the court. Schildhaus v. Moe, 335 F.2d 529, 530 (2d Cir.1964); see United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932). A continuing injunction, however, whether preliminary or permanent, is always subject to modification for a change in circumstances. See, e.g., System Fed'n No. 91, Ry. Employes' Dep't v. Wright, 364 U.S. 642, 650-51, 81 S.Ct. 368, 372-73, 5 L.Ed.2d 349 (1961). Metro-North does not merely seek to subject the injunction "to impeachment in its application to the conditions that existed at its making," Swift, supra, 286 U.S. at 119, 52 S.Ct. at 464, but alleges that subsequent developments have removed the basis for the prospective application of the injunction.

A subsequent change in decisional law is an appropriate basis for dissolving a continuing injunction. Toussaint v. McCarthy, 801 F.2d 1080, 1090-91 (9th Cir. 1986); Nelson v. Collins, 659 F.2d 420, 424 (4th Cir.1981); Elgin Nat. Watch Co. v. Barrett, 213 F.2d 776, 780 (5th Cir.1954); Coca-Cola Co. v. Standard Bottling Co., 138 F.2d 788 (10th Cir.1943); see also Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 437-38, 96 S.Ct. 2697, 2705, 49 L.Ed.2d 599 (1976) (ambiguity of decree together with change in decisional law requires modification); System Fed'n, supra, 364 U.S. at 650 n. 6, 81 S.Ct. at 372 n. 6 (noting that "many cases" have held a

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mere change in decisional law sufficient). In general, "`when a change in the law authorizes what had previously been forbidden, it is abuse of discretion for a court to refuse to modify an injunction founded on the superseded law.'" Toussaint, supra, 801 F.2d at 1090 (quoting American Horse Protection Ass'n v. Watt, 694 F.2d 1310, 1316 (D.C.Cir.1982))

This case involves no special factors that would warrant departure from this rule. The defendant does not ask the court to undo the past effects of the injunction,...