                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                              )
TIMOTHY O’HARA,                               )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )             Civil Action No. 05-1476 (PLF)
                                              )
RAY LAHOOD, Secretary,                        )
                                            1
United States Department of Transportation,   )
                                              )
               Defendant.                     )
__________________________________________)


                                            OPINION

               Plaintiff Timothy O’Hara has moved pursuant to Rule 60(b)(6) of the Federal

Rules of Civil Procedure to reopen this case, in which the Court entered judgment for the

defendant in 2008 after determining that the claims of Mr. O’Hara and a second plaintiff,

Malachy Coghlan, were barred by the Supreme Court’s decision in Ledbetter v. Goodyear Tire

& Rubber Co., 550 U.S. 618 (2007). Mr. O’Hara argues that the enactment of the Lilly

Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (“Lilly Ledbetter Act”), warrants

vacatur of the Court’s order entering judgment for the defendant. He also has moved for leave

to amend his complaint to name an additional plaintiff, Lockett K. Yee.

               Upon careful consideration of the parties’ arguments, the relevant statutory and

case law, and the entire record in this case, the Court denied Mr. O’Hara’s motion to reopen this




       1
              The amended complaint names Norman Y. Mineta, former Secretary of
Transportation, as the party defendant. The Court substitutes the current Secretary of
Transportation, Ray LaHood, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
case and his motion to name Mr. Yee as a new plaintiff by Order of September 30, 2010. This

Opinion sets forth the reasoning underlying that Order.


                                        I. BACKGROUND

               Malachy Coghlan filed the original complaint in this case in 2005, naming

himself as a representative of a putative class of similarly situated persons and alleging that his

employer, the Federal Aviation Administration, an agency within the United States Department

of Transportation, had discriminated against him and other FAA employees on the basis of age

in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”).

See Complaint ¶ 1. Timothy O’Hara was named as a co-plaintiff and second potential class

representative in an amended complaint filed in December of 2005. In January of 2006, the

Secretary of Transportation filed a motion to dismiss the plaintiffs’ complaint or, in the

alternative, for summary judgment. The defendant argued, among other things, that the plaintiffs

had failed to contact an Equal Employment Opportunity Counselor “within 45 days of the date

of the matter alleged to be discriminatory,” as they were required to do under applicable

regulations. See Defendant’s Renewed Motion to Dismiss or, In the Alternative, for Summary

Judgment at 19-24. The Court denied the defendant’s motion on March 29, 2007. See Coghlan

v. Peters, Civil Action No. 05-1476, Order (D.D.C. Mar. 29, 2007).

               On May 29, 2007, the Supreme Court issued its opinion in Ledbetter, ruling that

where a plaintiff claims that her employer determined her rate of pay in a discriminatory manner,

the applicable statute of limitations begins to run at the time that the “pay-setting decision”

occurs; it is not triggered anew with the issuance of each paycheck whose amount was

determined by the “pay-setting decision.” Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S.


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at 621, 628. Because the Supreme Court’s decision had implications for Mr. Coghlan’s and Mr.

O’Hara’s claims, this Court vacated its order denying the defendant’s dispositive motion and

ordered the parties to submit supplemental memoranda assessing the impact of Ledbetter on the

claims of the plaintiffs in this case. See Coghlan v. Peters, Civil Action No. 05-1476, Order

(D.D.C. May 30, 2007).

               On March 31, 2008, the Court concluded that the plaintiffs’ claims were barred

under Ledbetter and issued an order entering judgment for the defendant. That March 31, 2008

Order was explained in an Opinion issued on May 28, 2008. See Coghlan v. Peters, 555 F.

Supp. 2d 187 (D.D.C. 2008). The Court determined that the most recent “pay-setting decisions”

complained of by Mr. Coghlan and Mr. O’Hara were made on or about January 11, 2004, and

November 9, 2004, respectively. See Coghlan v. Peters, 555 F. Supp. 2d at 199. Under the logic

of Ledbetter, those dates marked the start of the 45-day period during which the plaintiffs had

been required to initiate administrative proceedings challenging the relevant pay-setting

decision, which the plaintiffs had failed to do. Id. at 199-202. The Court specifically rejected as

foreclosed by the Supreme Court’s decision in Ledbetter the plaintiffs’ argument that “each

paycheck [affected by a challenged pay-setting decision], even if not accompanied by

discriminatory intent, triggers a new EEOC charging period during which the complainant may

properly challenge [paychecks within that charging period and] any prior discriminatory conduct

that impacted the amount of that paycheck.” Id. at 203 (internal quotation marks and citation

omitted).

       In January of 2009, Congress passed and the President signed the Lilly Ledbetter Act,

overturning the Ledbetter decision. The Act amended the ADEA, among other civil rights laws,

to provide:

                                                 3
               For purposes of [the ADEA], an unlawful practice occurs, with
               respect to discrimination in compensation in violation of this Act,
               when a discriminatory compensation decision or other practice is
               adopted, when a person becomes subject to a discriminatory
               compensation decision or other practice, or when a person is
               affected by application of a discriminatory compensation decision
               or other practice, including each time wages, benefits, or other
               compensation is paid, resulting in whole or in part from such a
               decision or other practice.

Pub. L. No. 111-2, § 4 (amending 29 U.S.C. § 626(d)). “In other words, [under this Act] each

paycheck resulting from the ‘original compensation decision or other practice’ triggers a new

filing period” during which a claim challenging the “original compensation decision” may be

timely brought, even if the compensation decision itself was made long before. Johnson v.

District of Columbia, 632 F. Supp. 2d 20, 22 (D.D.C. 2009). “[T]he [Lilly Ledbetter Act]

effectively nullified the Ledbetter decision.” Id. (quoting Reed v. Kucera, Civil Action No.

08-3132, 2009 WL 1451568, at *2 (D. Neb. May 20, 2009)) (internal quotation marks omitted).

Moreover, Congress specified that the statutory amendments effected by the Act, including those

to the ADEA, would “take effect as if enacted on May 28, 2007 and apply to all claims of

discrimination in compensation under . . . [the ADEA] . . . that are pending on or after that date.”

Pub. L. No. 111-2, § 6.

               On February 9, 2009, the plaintiffs filed a motion to reopen this case in light of

the passage of the Lilly Ledbetter Act. While that motion was pending, Mr. Coghlan entered

into a settlement agreement with the defendant that resolved his claims. See Notice of Filing,

Docket No. 35, at 1 (filed Aug. 25, 2009). In response, Mr. O’Hara filed the pending motion to

name Lockett K. Yee as a new co-plaintiff.




                                                 4
               On September 15, 2009, the Court denied the plaintiffs’ motion to reopen the case

without prejudice, asking the parties to file new motion papers updated to account for recent case

law analyzing the impact of the Lilly Ledbetter Act. See O’Hara v. LaHood, Civil Action No.

05-1476, Minute Order (D.D.C. Sept. 15, 2009). The plaintiff then filed a renewed motion to

reopen, which is now ripe for decision.


                                          II. DISCUSSION

               The plaintiffs have moved under Rule 60(b)(6) of the Federal Rules of Civil

Procedure for vacatur of the Court’s final order of March 31, 2008, entering judgment in favor

of the defendant. The relevant portion of the Rule provides:

               On motion and just terms, the court may relieve a party or its legal
               representative from a final judgment, order, or proceeding for the
               following reasons:

                                               ***

               (6) any other reason [aside from those enumerated in
               subparagraphs (1) through (5)] that justifies relief.

FED . R. CIV . P. 60(b). Rule 60(b)(6) “should be only sparingly used,” and then “only in

extraordinary circumstances.” Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007).

               Mr. O’Hara contends that the passage of the Lilly Ledbetter Act and its

retroactive amendment of the ADEA constitute “extraordinary circumstances” warranting

vacatur of the final judgment for the defendant previously entered in this case. Plaintiff’s

Renewed Motion to Reopen (“Mot.”) at 4. In opposition, the defendant argues, among other

things, that the Supreme Court’s decision in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

(1995), prohibits the reopening of this case in response to the changes in the law effected by the



                                                 5
Lilly Ledbetter Act. Defendant’s Opposition to Plaintiff’s Renewed Motion to Reopen (“Opp.”)

at 2 n.1. The Court agrees with the defendant.

               In Plaut, the Supreme Court confronted a set of circumstances in many ways

similar to those presented here. On June 20, 1991, while the securities fraud claims of the Plaut

plaintiffs were pending in the district court, the Supreme Court decided Lampf, Pleva, Lipkind,

Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), which altered the law governing the

statute of limitations applicable to the claims of the Plaut plaintiffs. See Plaut v. Spendthrift

Farm, Inc., 514 U.S. at 213. Applying Lampf, the district court ruled that the Plaut plaintiffs’

claims were untimely and dismissed their complaint in August of 1991. Id. In December of

1991, Congress overruled Lampf by statute, providing that the statute of limitations applicable to

securities fraud claims brought in a given jurisdiction would be “the limitation period provided

by the laws applicable in the jurisdiction . . . as such laws existed on June 19, 1991” — the day

prior to the issuance of the Lampf decision. Federal Deposit Insurance Corporation

Improvement Act of 1991, Pub. L. No. 102-242, § 476. Congress also ordered the reinstatement

on motion of “any private civil action [involving claims like those of the Plaut plaintiffs] that

was commenced on or before June 19, 1991,” “dismissed as time barred subsequent to June 19,

1991,” and “timely filed under the limitation period provided by the laws applicable in the

jurisdiction . . . as such laws existed on June 19, 1991.” Id.

               The Supreme Court in Plaut struck down the portion of the FDIC

Improvement Act that ordered the reinstatement of claims dismissed as untimely, finding that it

violated the separation of powers by permitting Congress to force the reopening of closed cases

and to alter the substantive law to be applied in a judicial decision that had already become final.

The Court’s pronouncement was unequivocal: “Having achieved finality, . . . a judicial decision

                                                  6
becomes the last word of the judicial department with regard to a particular case or controversy,

and Congress may not declare by retroactive legislation that the law applicable to that very case

was something other than what the courts said it was.” Plaut v. Spendthrift Farm, Inc., 514 U.S.

at 227 (emphasis in original). The framers of the Constitution felt “a sharp necessity to separate

the legislative from the judicial power, prompted by [a] crescendo of legislative interference

with private judgments of the courts,” id. at 221, and the separation-of-powers doctrine thus

prohibits “legislative interference with judicial judgments.” Id. at 228.

               As in Plaut, Mr. O’Hara’s complaint in this case was dismissed in the wake

of a Supreme Court decision that altered the law applied to determine the timeliness of his

claims. Congress legislatively nullified that decision and explicitly made that nullification

retroactive and applicable to cases pending at the time the Ledbetter decision was released.

Unlike the FDIC Improvement Act, however, the Lilly Ledbetter Act does not purport to require

the reinstatement of claims extinguished in the wake of the disapproved Supreme Court

precedent. Indeed, President Obama, after signing the Lilly Ledbetter Act, observed that it could

not revive the claims of Lilly Ledbetter herself. See Aneja v. Angeliades, Inc., Civil Action No.

05-9678, 2010 WL 199681, at *3 n.2 (S.D.N.Y. Jan. 12, 2010) (citing White House Press

Release, Remarks by the President upon Signing the Lilly Ledbetter Bill (Jan. 29, 2009)).

               According to Mr. O’Hara, it is precisely this distinction that permits his claims to

be resurrected, while those of the Plaut plaintiffs remained foreclosed. Unlike the FDIC

Improvement Act, the Lilly Ledbetter Act does not require courts to reopen closed cases and so,

he argues, it does not run afoul of the constitutionally mandated separation of powers. Mr.

O’Hara suggests that while Congress could not order the reinstatement of his claims, this Court

could nevertheless permit that result. In his view, in recognition of Congress’ obvious

                                                 7
disapproval of the Ledbetter decision, the Court could exercise its discretion under Rule 60(b)(6)

to vacate its prior judgment and allow Mr. O’Hara the benefit of the Lilly Ledbetter Act’s

retroactive effect. See Plaintiff’s Reply to Defendant’s Opposition to Plaintiff’s Renew Motion

to Reopen Case (“Reply”) at 1. The Court does not believe that Plaut permits such an exercise

of discretion.

                 Contrary to the plaintiff’s argument, the Supreme Court in Plaut did not so

roundly condemn the FDIC Improvement Act simply because that statute made the reinstatement

of extinguished claims mandatory. It did so because the separation of powers is offended when

judicial “acts [are] subject to legislative correction.” Plaut v. Spendthrift Farm, Inc., 514 U.S. at

223. The constitutional violation identified by the Plaut Court was not simply the nullification

of final judgments by the legislature, but “legislative interference” with those judgments. Id. at

228. If this Court were to set aside its prior judgment in response to the passage of the Lilly

Ledbetter Act, Congress would not have negated that judgment directly, but it certainly would

have interfered with that judgment — by indicating a preference for an outcome different from

the one dictated by the law as understood by the courts on March 31, 3008, and influencing this

Court to adopt its preferred outcome.

                 In concluding that Plaut does not permit courts to use their discretion under Rule

60(b)(6) to acquiesce in the congressional overruling of decided cases, this Court is in accord

with the decisions of other courts regarding the propriety of reopening a case under Rule

60(b)(6) in response to a change in statutory law. See Norgaard v. DePuy Orthopaedics, Inc.,

121 F.3d 1074, 1076 (7th Cir. 1997) (after Plaut, the “door was closed” on “the possibility that ‘a

clear and authoritative change in governing law’ would justify reopening” a case under Rule

60(b)(6)); Raven v. Oppenheimer & Co., Inc., 74 F.3d 239, 243 n.9 (11th Cir. 1996) (musing in

                                                  8
dicta that “[w]hether the separation of powers problem [in Plaut] may somehow be avoided by

seeking Rule 60(b)(6) discretionary relief premised upon a new congressional pronouncement

seems doubtful”). The plaintiff’s sole argument under Rule 60(b)(6) is that “[t]he strong

Congressional intent underlying [the Lilly Ledbetter Act] constitutes ‘extraordinary

circumstances’ justifying relief from the final judgment of this Court.” Reply at 10. But such an

argument would be applicable any time Congress overturned Supreme Court precedent by

enacting a retroactive statute. If reopening under Rule 60(b)(6) were justified in every such

instance, then Congress would in effect achieve what Plaut said it could not — the rescission of

any final judgments entered in reliance upon the disfavored court ruling. If, on the other hand,

the passage of a retroactive statute negating the effects of a Supreme Court decision does not, in

and of itself, constitute “extraordinary circumstances” warranting the grant of relief under Rule

60(b)(6), then Mr. O’Hara has failed to explain why his case merits special consideration.

               Contrary to Mr. O’Hara’s contention, no decision from this Circuit issued in the

last fifty years has “recognized that Congress’ change in law directly applicable to a final

judgment can satisfy the requirement of extraordinary circumstances justifying reopening a case

under Rule 60(b)(6).” Mot. at 4. The case cited by the plaintiff, Stanford v. Potomac Elec.

Power Co., Civil Action No. 04-1461, 2007 WL 219991 (D.D.C. May 25, 2007), did not so hold.

Rather, in Stanford, Judge Walton summarized and then distinguished the holdings of two other

cases in which a “court agreed that the statutory change in law satisfied the requirement of

extraordinary circumstances justifying relief under Rule 60(b)(6).” Stanford v. Potomac Elec.

Power Co., Civil Action No. 04-1461, 2007 WL 219991, at *3 (citing In re Pacific Far East

Lines, Inc., 889 F.2d 242 (9th Cir. 1989) and McGrath v. Potash, 199 F.2d 166 (D.C. Cir. 1952)).

Both of those opinions, the Court notes, were issued long before the Supreme Court’s decision in

                                                 9
Plaut. Furthermore, the court of appeals’ decision in McGrath concerned the vacatur of a final

order entering a permanent injunction, a class of final judgments to which the reasoning of Plaut

does not apply. See Miller v. French, 530 U.S. 327, 344 (2000) (ruling that “[p]rospective relief

under a continuing, executory decree remains subject to alteration due to changes in the

underlying law”).

                 Finally, the plaintiff has cited — and the Court is aware of — no case in which a

court, responding to the passage of the Lilly Ledbetter Act, has exercised its discretion under

Rule 60(b)(6) to vacate a final judgment no longer subject to appeal. At least one court has

vacated an interlocutory order in a case that was still pending at the time the Act was passed, see

Johnson v. District of Columbia, 632 F. Supp. 2d at 21, 23; at least one has reinstated claims in a

case that was pending on appeal when the Act took effect, see Mikula v. Allegheny County of

Pa., 583 F.3d 181 (3d Cir. 2009); one has granted a plaintiff’s motion under Rule 59(e) to amend

a final judgment that was still appealable at the time the motion was filed. See Tomlinson v. El

Paso Corp., Civil Action No. 04-2686, 2009 WL 2766718 (D. Colo. Aug. 28, 2009). None of

these actions was exceptional, as it is routine for changes in the law to be applied to cases that

are still pending at the trial or appellate level at the time the change occurs. Unfortunately for

Mr. O’Hara, the judgment in his case was final and not subject to appeal when the Lilly

Ledbetter Act took effect. In our judicial system, to disturb the finality of such a judgment in a

contested case under Rule 60(b)(6) is exceptional, and disfavored. See, e.g., Kramer v. Gates,

481 F.3d at 791. To do so in response to retroactive statutory amendments is, under Plaut,

impermissible.




                                                 10
                                      III. CONCLUSION

              For the foregoing reasons, the plaintiff’s motion to reopen this case was

denied by Order of September 30, 2010, and all other pending motions were denied as moot.

              SO ORDERED.


                                    /s/_________________________
                                    PAUL L. FRIEDMAN
                                    United States District Judge

DATE: December 23, 2010




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