Case 2:87-cv-00838-BSJ Document 825 Filed 09/19/13 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
* * * * * * * * *
Civil No. 87-C-838J
Civil No. 88-C-763J
Civil No. 91-C-636J
CLERK, U.S. DISTRICT COURT
September 19, 2013 (2:05pm)
DISTRICT OF UTAH
TONY PICKERING, et al.,
LYNN A. BARNEY, et al.,
RELDON C. KENNY, et al.,
* * * * * * * * *
On September 6, 2013, the above-captioned action came before the court for a hearing on
a series of motions filed pro se by two named plaintiffs, Ronald J. Chilton and David L. Glazier.
Mr. Chilton and Mr. Glazier appeared on their own behalf; Richard D. Burbidge appeared on
Case 2:87-cv-00838-BSJ Document 825 Filed 09/19/13 Page 2 of 17
behalf of the plaintiffs’ counsel of record. The court heard argument by the movants and
counsel, and having considered the same in light of the record in this case as well as other
proceedings of which this court was apprised, the court now rules as follows:
“Plaintiffs’ Motion for an Order Commanding Defendants to Pay and Plaintiffs’ Motion
for an Order Recognizing a Vitiated State Court Ruling” (CM/ECF No. 812), seeks an order
“commanding that the Defendants shall pay to Plaintiffs the 1987 accrued vacation benefit
monies as dictated in” this court’s 236-page Memorandum Opinion and Order entered in the
above-entitled action on May 5, 1995 (CM/ECF No. 782), and “recognizing the vitiation of the
state court’s September 22, 2005 decisions” concerning this court’s Pickering opinion and the
“applicable Basic Labor Agreement” that resulted in the denial of adjudication in Chilton v.
Young, Civil No. 030105887 (3d Dist. Ct.), a state civil action that had been commenced by the
movants and others against their attorneys of record in this action. The gist of movants’
argument appears to be this: Judge Brian’s September 22, 2005 summary judgment ruling
concluded that Messrs. Chilton, Glazier and others were not entitled to an award of accrued
vacation pay for 1988 because “any vacation that might have accrued in 1987, to those eligible
was not payable in 1988 because such vacation pay was forfeited when they were all effectively
This Memorandum Opinion and Order is also available at Pickering v. USX Corp., 1995
WL 584372 (D. Utah 1995). The court’s prior Memorandum Opinion and Order on the liability
phase of the proceeding is found at Pickering v. USX Corp., 809 F. Supp. 1501 (D. Utah 1992).
To “vitiate” is to “impair; to cause to have no force or effect . . . To make void or
voidable; to invalidate either completely or in part . . . .” Black’s Law Dictionary 1708 (9th ed.
2009); see also Merriam-Webster’s Collegiate Dictionary 1399 (11th ed. 2003) (to vitiate is “to
make faulty or defective,” to impair, or “to make ineffective”).
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discharged on August 31, 1987, which was prior to January 1, 1988”; Judge Brian construed
their right to vacation pay to be forfeited under the applicable collective bargaining agreement “if
the employee ‘quits, retires, dies or is discharged prior to January 1 of the vacation year,’” and in
doing so, movants insist that he misconstrued the terms of that agreement and ignored the res
judicata effect of this court’s 1995 Memorandum Opinion and Order. The movants submit that
if the collective bargaining agreement is correctly construed and proper preclusive effect is
accorded this court’s 1995 Memorandum Opinion and Order, they are each legally entitled to
such 1988 vacation pay, and that their counsel of record in this case—those named as
“Defendants” in the caption of their motion, in contrast to USX—should be ordered by this court
to pay them.
The movants’ request finds its roots in a page or two of history.
In 1992, this court held the movants’ former employer, USX Corporation, liable for
violations of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§
1001 et seq., on three theories: (1) that USX’s failure to recall laid off steelworkers at the Geneva
Steel Works to active employment prior to July 31, 1986 was motivated by USX’s specific intent
to interfere with those plaintiffs’ attainment of pension benefit rights in violation of §510 of
ERISA; (2) that USX’s decision to “idle” the Geneva Works at the end of an August 1986-
(Memorandum Decision, dated September 22, 2005, in Ronald J. Chilton, et al., vs.
Allen K. Young, et al., Civil No. 030105887 (3d Dist. Ct.), at 11 (annexed as Exhibit “B” to
Memorandum in Support of Plaintiffs’ Motion for an Order Commanding Defendants to Pay and
Plaintiffs’ Motion for an Order Recognizing a Vitiated State Court Ruling, filed July 16, 2012
(CM/ECF No. 813) (“Chilton-Glazier Mem.”)).)
(Id. (quoting 1987 Basic Labor Agreement at § 12-A-3).)
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February 1987 “work stoppage” rather than operating, closing or selling the plant was similarly
motivated by USX’s unlawful intent to interfere with its employees’ attainment of pension
benefit rights in violation of §510 of ERISA; and (3) that USX amended its employee pension
plan by reducing significantly the rate of future accrual of pension benefits without the written
notice required by section 204(h) of ERISA. See Pickering v. USX Corp., 809 F. Supp. 1501,
1531-59, 1560-66 (D. Utah 1992). The court’s finding that USX violated ERISA raised the
question of the proper remedies to redress these violations for the benefit of 1,892 former USX
employees. Beginning with the claims of twenty-four “bellwether” plaintiffs whose individual
circumstances seemed typical of many other plaintiffs, trial of this second “remedies phase” of
the litigation commenced on October 14, 1993, and continued through nineteen days of trial.
The presentation of evidence continued for nineteen days, and the court then took the matter
As the movants recount, this court issued its Memorandum Opinion and Order on the
remedies phase on May 5, 1995, detailing the back pay, retirement benefit accruals and similar
relief to which nearly all of the bellwether plaintiffs were entitled. The 1995 Memorandum
Opinion and Order called upon counsel to assist in computing specific remedial amounts and
preparing the final judgment to be entered in favor of those plaintiffs. Plaintiffs’ counsel also
filed a motion for an award of attorney’s fees and costs, which USX and related entities opposed.
In the midst of those matters, the parties engaged in settlement negotiations, and in July
of 1995, USX agreed to pay more than $47 million for the benefit of 1,674 remaining plaintiffs5
As the court noted in its May 1995 opinion, over two hundred retiree plaintiffs had
settled their claims against USX in May of 1994.
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together with several million additional dollars in retirement benefit accruals. The negotiation of
that settlement and the acceptance of the USX proposal by the plaintiffs was handled by the
parties’ counsel entirely outside of this court’s processes. The court played no part in the USX
settlement itself. As the record reflects, on July 21, 1995, counsel presented to the court a joint
stipulation to dismiss this case as to all but two of the remaining plaintiffs (CM/ECF No. 794).
On July 25, 1995, the court held a status conference concerning the parties’ settlement and
stipulation for dismissal, and based upon the representations made by counsel in open court and
on the record that the matter was settled as to 1,675 plaintiffs, this court signed and entered the
order of dismissal (CM/ECF No. 796) that same day. 7
At no time were the terms of the parties’ settlement reviewed or evaluated by this court,
and at no time was this court called upon to oversee or supervise the administration or
distribution of that settlement. No final judgment was ever entered by this court memorializing
the relief granted in the May 1995 Memorandum Opinion and Order or reflecting the
computation of any amount of back pay or other relief awarded to any named plaintiff.
Chilton v. Young: the State Court Litigation
From the papers submitted by Messrs. Chilton and Glazier, it appears that some degree of
discord arose between some plaintiffs and their attorneys concerning the amount and distribution
The written materials submitted by the movants include a transcript of a June 28, 1995
meeting of plaintiffs’ counsel with an assembly of the plaintiffs at Mountain View High School
in Orem, Utah, at which the terms of the proposed settlement were discussed.
(See Minute Entry, dated July 25, 1995 (CM/ECF No. 797).) The two remaining
plaintiffs, Tom Chamberlain and Janet McDermott, settled with USX by mid-August, and
submitted similar stipulations for dismissal. Orders of dismissal (CM/ECF Nos. 806, 809) were
entered by August 21, 1995, bringing this case to an end.
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of the USX settlement that subsequently led to the filing of a civil lawsuit against plaintiffs’
counsel in 2002, Ronald J. Chilton, et al., vs. Allen K. Young, et al., Civil No. 030105887 (3d
Dist. Ct.). Litigation in the state court action continued for several years, and the matter was
finally decided in the attorneys’ favor. The state court plaintiffs appealed, and in 2009 the Utah
Court of Appeals affirmed the district court’s judgment. See Chilton v. Young, 2009 UT App
265, 220 P.3d 171. The Utah Court of Appeals later denied a rehearing, and in March of 2010,
the Utah Supreme Court denied certiorari review. Chilton v. Young, 230 P.3d 127 (Utah, March
17, 2010) (Table).
Chilton v. Young: the Federal Civil Action
In July of 2010, Messrs. Chilton and Glazier filed a federal civil action against the same
attorneys and two state district judges, among others, alleging fraudulent misrepresentation,
malpractice, and other claims arising from the administration and disbursement of the USX
settlement and the subsequent state court lawsuit. After some considerable procedural
wrangling, an October 4, 2011 Report and Recommendation by U.S. Magistrate Judge Paul
Warner concluded that the case should be dismissed for lack of either diversity or federal
question jurisdiction, among other reasons.
After receiving a series of objections and motions
by the plaintiffs, Judge Dee Benson entered an order adopting the Report and Recommendation
Apparently a prior lawsuit was filed in state court in 2001, but was dismissed without
prejudice because of the plaintiffs’ failure to effect timely service of process upon the defendants.
(Ronald J. Chilton & David L. Glaizer vs. Allen K. Young, et al., Civil No. 2:10-CV-699
DB (D. Utah, filed July 26, 2010).)
(Report and Recommendation, filed October 4, 2011 (CM/ECF No. 85).)
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and dismissing the action.
Messrs. Chilton and Glazier did not appeal that dismissal.
The Chilton-Glazier Motion
In July of 2012, Messrs. Chilton and Glazier filed the instant motion (CM/ECF No. 812),
with an accompanying memorandum in support (CM/ECF No. 813). As exhibits they also
submitted copies of various documents, including state appellate briefs, deposition transcripts, a
transcript of a June 28, 1995 meeting and a report on the distribution of the equitable award
portion of the USX settlement fund. A series of procedural filings followed (requests to submit
for decision, objections, motions to strike, etc.), and the court then calendared the motion for
hearing on September 6th.
The USX Settlement
The most salient fact bearing upon the movant’s request for entry of orders in this case is
the fact that this case was settled by agreement of the parties in July of 1995. Whatever payment
Messrs. Chilton and Glazier—or any other of the 1,675 remaining plaintiffs—were entitled to
receive as part of that settlement was governed by the terms of the parties’ settlement agreement
as those terms were negotiated and concluded between plaintiffs’ counsel and counsel for USX.
The movants aver that plaintiffs’ counsel told the plaintiffs that the proposed USX settlement
“included everything that had been awarded in” this court’s May 5, 1995 Memorandum Opinion
(Order Adopting Report & Recommendation, filed October 28, 2011 (CM/ECF No.
They did procure an amended judgment in that case correcting the Clerk’s original
judgment which recited that the case had been decided by a jury. (See Amended Judgment, filed
December 13, 2011 (CM/ECF No. 100), in Ronald J. Chilton & David L. Glaizer vs. Allen K.
Young, et al., Civil No. 2:10-CV-699 DB (D. Utah.)
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and Order, “and a little bit more.” Plaintiffs’ counsel had indicated that the USX settlement
fund would largely be distributed by analogy to this court’s rulings as to the twenty-three
bellwether plaintiffs, with an amount reserved for further equitable adjustments in specific cases.
In their state lawsuit, the movants alleged that the administration of the USX settlement departed
from this approach in several respects.
The 1987 Vacation Pay Issue
Of key importance here is the movants’ assertion in the state court action that many of the
plaintiffs qualified for vacation pay that accrued in 1987 and would have been payable in 1988
under the USX collective bargaining agreement, but that such accrued vacation pay was not taken
into account in calculating the USX settlement distribution. They insist that the state district
court erred in ruling that any vacation pay that accrued in 1987 was forfeited by the plaintiffs
pursuant to a provision of the collective bargaining agreement providing that an employee
“forfeits the right to receive vacation benefits . . . if he quits, retires, dies, or is discharged prior to
January 1 of the vacation year.” As explained above, Judge Brian concluded that “any vacation
that might have accrued in 1987, to those eligible was not payable in 1988 because such vacation
pay was forfeited when they were all effectively discharged on August 31, 1987, which was prior
to January 1, 1988.” They contend that by equating the “termination” of the plaintiffs’
(Chilton-Glazier Mem. at 4; see Transcript of Meeting, dated June 28, 1995, at 14:22-
15:8, 18:11-14 (Mr. Orlofsky).)
(1987 Basic Labor Agreement at § 12-A-3.)
(Memorandum Decision, dated September 22, 2005, in Ronald J. Chilton, et al., vs.
Allen K. Young, et al., Civil No. 030105887 (3d Dist. Ct.), at 11 (annexed as Exhibit “B” to the
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employment by USX as of August 31, 1987 as found by this court with being “discharged”
within the meaning of the forfeiture provision,
Judge Brian misconstrued the terms of the
collective bargaining agreement and failed to give credence to this court’s May 5, 1995
Memorandum Opinion and Order.
The movants argue that “discharged” specifically refers to
being terminated from employment for good cause, in contrast to the sale by USX of the Geneva
Works after August 31, 1987, which effectively terminated the plaintiffs’ employment by USX
without regard to good cause.
The Utah Court of Appeals affirmed Judge Brian’s ruling on this issue, rejecting the
Judge Brian explained that “[a]s found in Pickering, none of the plaintiff steelworkers
were employed by USX as of January 1, 1988. Therefore, this Court concludes that none of them
were entitled to vacation pay accrued in 1987, that was payable in 1988.” (Id.)
The state court’s 2005 memorandum decision does reflect some misapprehension of
this case and this court’s 1995 Memorandum Opinion and Order. For example, it recites that
“Judge Jenkins did not consider any of the bellwether claims that were . . . ‘layoff’ (recall)
plaintiffs because they had been dismissed with prejudice”; in fact, the “layoff” (or “recall”)
plaintiffs were the first category of bellwether plaintiffs addressed in the 1995 Memorandum
Opinion and Order. It also discusses the question “whether, in class action litigation, an attorney
has a duty to include attorney’s fees in settlement negotiations and a proposed settlement,”
apparently not realizing that this case was not a class action.
The state court noted that this court ruled that equitable relief under ERISA “would
include ‘an award of back pay (wages, sick leave, vacation pay, incentive pay and other employee
compensation) equal to the compensation [they] would have received during the periods of recall
to employment at Geneva’”—which included the seven-month “idling” period in 1987—but
Judge Brian made no effort to reconcile that ruling with its own conclusion that 1987 vacation
pay was forfeited under the terms of the 1987 Basic Labor Agreement.
As this court explained, the plaintiffs’ ERISA remedies “‘must be measured within the
terms of the 1987 BLA, [and] Pension Agreement, as if [plaintiffs] had remained active
employees who were terminated when Geneva was sold to BM & T,’ (id.) that is, on August 31,
1987.” (Memorandum Opinion and Order, filed May 5, 1995 (CM/ECF No. 782), at 78, 1995
WL 584372, at *41 (quoting Pickering, 809 F. Supp. at 552).)
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As to the 2005 order, the applicable contract provided that an employee forfeited
the right to receive vacation benefits for a given calendar year if the employee was
discharged prior to January 1 of that year. It is undisputed that Chilton and
Glazier were terminated on August 31, 1987. Thus, the 2005 order correctly
concluded that Chilton and Glazier were ineligible to receive vacation pay during
Chilton v. Young, 2009 UT App. 265, ¶ 5, 220 P.3d at 172-73.
This Court’s Rulings and Vacation Pay
In its 1995 Memorandum Opinion and Order, this court did find that the plaintiffs’
employment by USX was terminated as of August 31, 1987, when the Geneva plant was sold.
This court also delineated the equitable remedies to which many of the bellwether plaintiffs were
entitled under ERISA, among them “an award of back pay (wages, sick leave, vacation pay,
incentive pay or other employee compensation) equal to the compensation [they] would have
received during the periods of recall to employment at Geneva,” less “any amount of income
earned by [them] through other employment during those same periods.” Of particular concern
was back pay that accrued during the seven-month period from February through August of 1987
during which USX “idled” the Geneva plant in violation of ERISA.
This court was not squarely presented with the question whether plaintiffs’ vacation pay
that accrued during 1987 would be forfeited pursuant to § 12-A-3 of the 1987 Basic Labor
Agreement—as Judge Brian subsequently concluded—and thus the 1995 Memorandum Opinion
and Order does not explicitly address that question.
Messrs. Chilton and Glazier implore this
(Id. at 108 ¶ 21, 1995 WL 584372, at 56 ¶ 21.)
This court did expressly adopt the analysis of plaintiffs’ expert, Dr. Paul Randle,
concerning the calculation of back pay awards, noting that Dr. Randle treated vacation pay as
“mitigating income” to be offset against the plaintiffs’ lost wages amount, at least for 1986-87.
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court to address it now and rule in their favor, notwithstanding the final judgment of the state
courts to the contrary.
But the threshold question is whether this court has the power to do so.
The State Chilton v. Young Judgment and the Rooker-Feldman Doctrine
Generally, a collective bargaining agreement “is a federal contract and is therefore
governed and enforceable by federal law, in the federal courts,” International Ass’n of
Machinists v. Central Airlines, Inc., 372 U.S. 682, 692 (1963), and construction of the language
of the 1987 Basic Labor Agreement as a collective bargaining agreement may thus raise a federal
question over which this court has subject matter jurisdiction.
Moreover, under § 301 of the
Labor Management Relations Act, 29 U.S.C. § 185,
“‘if the resolution of a state-law claim
(Id. at 80, 82, 1995 WL 584372, at *42, *43.) Presumably, had the litigation proceeded to entry
of judgment, the plaintiffs’ back pay awards would have been computed in the fashion delineated
by Dr. Randle.
As one well-known treatise explains:
Under the federal labor statutes, as interpreted by the United States
Supreme Court, the rights of the parties to a collective bargaining agreement are
governed by federal law. This is true whether the action is brought in federal or
state court. While resort to state law, if compatible with the purpose of the Labor
Management Relations Act, is permissible to find the rule that will best effectuate
federal policy, any state law applied in this manner will be absorbed as federal
20 Richard A. Lord, Williston on Contracts § 55:54, at 230-33 (4th ed. 2001) (emphasis added &
Section 301(a) reads:
Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined in this Act,
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depends upon the meaning of a collective-bargaining agreement’ the state-law claim is
preempted.” Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 529 (10th Cir. 1992) (quoting Lingle v.
Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988)); see also Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 208-10 (1985); Johnson v. Beatrice Foods Co., 921 F.2d 1015,
1018-20 (10th Cir. 1990); Marshall v. TRW, Inc., Reda Pump Division, 900 F.2d 1517, 1520-22
(10th Cir. 1990); United Assoc. of Journeymen and Apprentices, Local Number 57 v. Bechtel
Power Corp., 834 F.2d 884, 887-89 (10th Cir. 1987) cert. denied, 486 U.S. 1055 (1988).
the extent that it depends upon the construction of the 1987 Basic Labor Agreement, the
movants’ 1987 vacation pay claim may well have raised a federal question that could have been
addressed by the federal district court in the first place.
Be that as it may, the matter proceeded through the state courts to its conclusion before
the Utah Court of Appeals, with the Utah Supreme Court denying review—at which point the
or between any such labor organizations, may be brought in any district court of
the United States having jurisdiction of the parties, without respect to the amount
in controversy or without regard to the citizenship of the parties.
Section 301 “not only provides federal-court jurisdiction over controversies involving collective-
bargaining agreements, but also ‘authorizes federal courts to fashion a body of federal law for the
enforcement of these collective bargaining agreements.’” Lingle v. Norge Division of Magic
Chef, Inc., 486 U.S. 399, 403 (1988) (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448,
As Williston explains, “the Supreme Court has held that state law does not exist as an
independent source of private rights to enforce collective bargaining agreements, and federal law
preempts state law claims that are based directly on rights created by the agreement, as well as
claims substantially dependent on an analysis of the agreement.” 20 Williston on Contracts §
55:58, at 255 (footnotes omitted).
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state court judgment became final.24
The movants’ current plea for this court’s assistance with the vacation pay issue simply
comes too late.
As our court of appeals reminds us, the Rooker-Feldman doctrine “bars federal courts
from reviewing the judgments and decisions of state courts once they have become final.” D.A.
Osguthorpe Family Partnership v. ASC Utah, Inc., 705 F.3d 1223, 1230 n.7 (10th Cir. 2013).25
“The Rooker-Feldman doctrine establishes, as a matter of subject-matter jurisdiction, that only
the United States Supreme Court has appellate authority to review a state-court decision.”
Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074–75 (10th Cir. 2004) (footnote
omitted). “Thus, in applying the Rooker-Feldman doctrine, we focus on whether the lower
federal court, if it adjudicated plaintiff’s claims, would effectively act as an appellate court
reviewing the state court disposition.” Id. at 1075.
In Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005), “the Supreme
Court made clear that the Rooker-Feldman doctrine has a narrow scope,” Chapman v. Oklahoma,
472 F.3d 747, 749 (10th Cir. 2006), and “applies only to suits filed after state proceedings are
final.” Guttman v. Khalsa, 446 F.3d 1027, 1032 (10th Cir. 2006).
Thus, the Rooker-Feldman
Indeed, finality accords the state court judgment in Chilton v. Young preclusive res
judicata effect on the vacation pay issue. See Allen v. McCurry, 449 U.S. 90, 94 (1980) (“Under
res judicata, a final judgment on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that action.”).
The Rooker-Feldman doctrine takes its name from the two Supreme Court cases in
which its rule has been applied: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
For purposes of the Rooker-Feldman doctrine, state proceedings are final “(1) ‘when the
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doctrine is triggered only “after the state proceedings have ended.” 544 U.S. at 291; D.A.
Osguthorpe Family Partnership, 705 F.3d at 1232.
But the present motion—requesting that this court enter an order that “the lower state
court ruling is recognized as vitiated due to lack of jurisdiction to make a determination over
matters pertaining to the Pickering v. USX case” —falls neatly within the scope of the Rooker-
Feldman doctrine because it was brought by “state-court losers complaining of injuries caused by
state-court judgments rendered before the district court proceedings commenced and inviting
district court review and rejection of those judgments.” Exxon Mobil, 544 U.S. at 284. As a
result, this court simply lacks the jurisdiction to do as the movants now ask.
Finally, we cannot lose sight of what it is that the movants actually sought to construe and
enforce, first in the state court litigation, and now here. The movants do not seek direct
enforcement of the rulings set forth in this court’s 1995 Memorandum Opinion and Order—nor
could they in a case in which eighteen years ago, the parties stipulated to dismissal with prejudice
in lieu of entry of a final judgment on the merits. Nor do they seek to vindicate specific
employee rights under the 1987 Basic Labor Agreement more than twenty-six years after the
Pickering plaintiffs’ employment was terminated by the sale of the Geneva plant. Instead the
highest state court in which review is available has affirmed the judgment below and nothing is
left to be resolved’; (2) ‘if the state action has reached a point where neither party seeks further
action’; or (3) ‘if the state court proceedings have finally resolved all the federal questions in the
litigation, but state law or purely factual questions (whether great or small) remain to be
litigated.’” Guttman, 446 F.3d at 1032 (quoting Federación de Maestros de Puerto Rico v. Junta
de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17, 24–25 (1st Cir. 2005)).
(Chilton-Glazier Mem. at 15.)
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movants’ arguments turn upon the construction and enforcement of the terms of the USX
settlement agreement in this case.
The movants insist that the actual distribution of the USX settlement fund should have
comported more strictly with the remedies delineated by this court as to the twenty-three
bellwether plaintiffs, particularly as to the vacation pay component of the remedial back pay
awards. Yet eighteen years later, the specific terms of the USX settlement and the particulars of
the actual distribution of the settlement fund are still not before this court.
As explained to the assembled Pickering plaintiffs at the June 28, 1995 Mountain View
High School meeting, plaintiffs’ counsel anticipated a distribution of the USX settlement funds
that would approximately equate with what the plaintiffs would have received had the remedies
prescribed by this court’s 1995 Memorandum Opinion and Order been implemented by analogy
as to all 1,675 remaining plaintiffs. Counsel acknowledged at the June 28th meeting that the
anticipated settlement distribution would be accomplished through standard awards calculated
through averaging of employee categories rather than by detailed, individualized case-by-case
Of necessity, such a formulation is somewhat imprecise and inescapably imperfect.
Individual circumstances were to be addressed by a hearing officer empowered to make
case-by-case equitable adjustments to settlement distributions using a special fund set aside for
The vacation pay issue was raised before the hearing officer, but not conclusively
resolved. The hearing officer, former Third District Judge Scott Daniels, reported that “[o]ne
issue has arisen repeatedly.”
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In a case as large and complex as this one, settlement bespeaks compromise, and
compromise bespeaks approximate, but imperfect justice.
The actual distribution of the USX settlement fund may not have precisely mirrored this
court’s prescribed remedies as to the twenty-three bellwether plaintiffs, but it succeeded in
putting significant amounts of money into the pockets of the prevailing bellwether plaintiffs—as
well as the 1,652 remaining plaintiffs—without awaiting the years that would have been required
to adjudicate that many individual claims in court, and free from the nagging uncertainty that
always attends matters pending on appeal.
The movants’ misgivings about that process were resolved against them in the state court
proceeding that they pursued to finality in the state court of appeals, and at this point, given the
jurisdictional consequences of the Rooker-Feldman doctrine, this court simply cannot alter that
For that reason,
IT IS ORDERED that “Plaintiffs’ Motion for an Order Commanding Defendants to Pay
That issue is: vacation which would have accrued during the 1987 idling period.
It is clear that had it not been for the unlawful idling everyone working at the steel
mill would have accrued vacation. If any plaintiff is entitled to this award, every
steel mill employee is also entitled, not just the 400 or so workers who applied for
a special hearing. When Judge Jenkins calculated damages for the Bellweather
[sic] plaintiffs, he offset 1986 vacation (paid in 1987) as a reduction to damages.
Nevertheless, in calculating the standard award to each of the plaintiff groups, this
vacation was not offset, nor did I offset it in calculating the additional awards
from the equitable fund. Therefore, it would be inconsistent to add the vacation
which would have accrued in 1987 and paid in 1988. In addition, it wouldn’t be
fair to compensate the workers who applied for a special hearing for their
vacations without compensating all two thousand plaintiffs. Therefore I have not
awarded any plaintiff additional money for 1987 vacations.
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· and Plaintiffs' Motion for an Order Recognizing a Vitiated State Court Ruling" (CMIECF No.
812), is hereby STRICKEN, as are the subsidiary motions and requests filed in connection
therewith (CM/ECF Nos. 818, 820, 814 & 822).
DATED this " day of September, 2013.
BY THE COURT: