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June 18, 1981


The opinion of the court was delivered by: PLATT


On September 9, 1970, plaintiff Air Transport Association of America (ATA) and defendant Professional Air Traffic Controllers Organization (PATCO) entered into a stipulation of permanent injunction so ordered by the late Judge Judd of this Court, prohibiting air traffic controllers, who are federal employees, from engaging in strike activities in violation of 5 U.S.C. § 7311 and 18 U.S.C. § 1918. *fn1"

 In the spring of 1978 PATCO was again before this Court, seeking a declaration that the 1970 injunction was not intended to have prospective application to strike activities after 1970. This Court held at that time that the 1970 injunction was still in full force and effect in 1978, and would continue to be so unless and until laws making strikes by federal employees illegal were either repealed or declared unconstitutional. See Air Transport Ass'n et al. v. PATCO, 453 F. Supp. 1287 (E.D.N.Y.1978). That judgment was subsequently affirmed on appeal. Air Transport Ass'n et al. v. PATCO, 594 F.2d 851 (2d Cir. 1978), cert. denied, 441 U.S. 944, 99 S. Ct. 2163, 60 L. Ed. 2d 1046 (1979). ("ATA v. PATCO II ").

 Now, once again on the very eve of another threatened strike by air traffic controllers, PATCO seeks vacatur of the permanent injunction it consented to in 1970 for valuable consideration, *fn2" this time on the ground that the enactment in 1978 of the Civil Service Reform Act (the Act) 5 U.S.C. § 7101 et seq., and with it the establishment of a Federal Labor Relations Authority (FLRA) with exclusive jurisdiction over unfair labor practice disputes involving federal employees has somehow divested this Court of subject matter jurisdiction over this lawsuit.

 It is the position of the ATA that those enactments have not divested the Court of the subject matter jurisdiction which all sides concede it had in 1970 and 1978. This position is supported as well by the Department of Justice, the Department of Transportation, its subagency the FAA, the Office of Personnel Management and by the FLRA itself, who were invited by the Court as amici to file briefs on the issues raised in PATCO's motion.

 For the reasons set forth below, we hold that this Court retains subject matter jurisdiction over this action and that the 1970 injunction continues in full force and effect.


 The complex procedural history of this action from its inception through the 1978 proceedings is set forth in detail in this Court's prior opinions, ATA v. PATCO I and II, 313 F. Supp. 181, and 453 F. Supp. 1287, and in the unpublished opinion of the Second Circuit affirming the latter decision. Familiarity with all the facts and circumstances surrounding this eleven year-old dispute is assumed for purposes of this opinion. There is only one essential, unchanged fact that bears repeating here: strikes by federal employees continue to be illegal, 5 U.S.C. § 7311, and indeed criminal, 18 U.S.C. §§ 1918 and 2. *fn3"


 PATCO moves for vacatur of the injunction under Fed.R.Civ.P. 60(b)(5) which states in pertinent part that

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons....
(5) ... it is no longer equitable that the judgment should have prospective application ....

 Therefore, the principal inquiry we need make here is whether it is no longer "equitable" to enforce the terms of the 1970 stipulation and injunction in which the ATA relinquished, inter alia, its substantial claims for damages against PATCO, in return for which PATCO "relinquished" its "right" to strike in violation of federal law.

 It is hornbook law that if a court lacks subject matter jurisdiction at the outset of a lawsuit, all decrees, judgments, orders, etc., of that court, and, for that matter, all appellate decisions in the action are a nullity. See C.A. Wright, Federal Courts, ch. 2 and cases cited therein (2d ed. 1970); Fed.R.Civ.P. 12(h)(3). That is not the situation we have before us in this case. All sides agree that this suit was properly brought in this District Court in 1970. We also note at the outset that as a general rule federal jurisdiction properly obtained ab initio in an action remains unaffected by post-commencement changes. See generally F.D.I.C. v. Tisch, 89 F.R.D. 446 (E.D.N.Y.1981), and cases cited therein. Therefore, we are not dealing with an inherent fatal jurisdictional flaw; rather, we are squarely within the confines of Rule 60(b) which requires that it be inequitable not to release a party from the constraints of a prior decree. Furthermore, we need not address the question of whether this Court would have jurisdiction over the subject matter of this lawsuit were the suit filed today for the first time, although at this juncture there appears to be substantial merit to the position of the ...

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