Defendant appeals from an order of the Eastern District of New York, Platt, J ., denying defendant's motion to vacate an injunction, and from judgments of contempt and fines assessed for violating that injunction. Affirmed.
Before Lumbard, Mansfield, Van Graafeiland, Circuit Judges.
The Professional Air Traffic Controllers Organization (PATCO) appeals from an order entered on June 18, 1981, in the Eastern District of New York, Platt, J., denying its motion to vacate an injunction entered in 1970 enjoining PATCO from calling or engaging in any strike by air traffic controllers against the United States, 516 F. Supp. 1108. Consolidated with this appeal is PATCO's appeal from contempt judgments and fines levied against PATCO for commencing an illegal nationwide strike on August 3, 1981. The issue presented is whether passage of Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. §§ 7101-35 (Supp. IV 1980) (Title VII), which created an administrative body to adjudicate claims of unfair labor practices in the federal sector, ousts the district court of its continuing jurisdiction to enforce the 1970 injunction. We hold that the district court retains jurisdiction over the 1970 injunction and we affirm.
The present case had its genesis in the spring of 1970, when several hundred air traffic controllers employed by the Federal Aviation Administration in the New York area engaged in a "sick-out." The Air Transport Association (ATA) and eighteen of its member airlines sought an injunction in the Eastern District against the sick-out, alleging that it constituted a strike in violation of 5 U.S.C. § 7311, that it interfered with the carriers' obligations to furnish air transportation under 49 U.S.C. § 1301 et seq., and claiming standing and an implied right of action to enforce the statutory bar against federal employee strikes. After the district court had issued a temporary restraining order and thereafter a preliminary injunction against PATCO, the parties entered a stipulation on September 9, 1970, by which the defendants consented to the entry of two permanent injunctions, one against PATCO and one against its individual members, enjoining them from violating 5 U.S.C. § 7311. Final judgment was entered against PATCO immediately; final judgment against the individual defendants was postponed for two years to allow for appeals.*fn1 In consideration of the settlement, ATA waived its claim for $50 million damages against PATCO; however, the decree provided for PATCO to pay ATA $25,000 damages for each day PATCO might violate the injunction. It also laid down two conditions upon which PATCO could apply to the Court for vacatur of the injunction: the enactment of legislation making it lawful for federal employees to strike, or a decision by the Supreme Court striking down as unconstitutional the laws prohibiting strikes by federal employees. Neither event has occurred.
The injunction was first tested in 1978, when PATCO conducted a "slowdown" at FAA installations in New York. When ATA went to court to enforce the injunction, PATCO claimed that the injunction applied only to activities growing out of the 1970 sick-out. In Air Transport Association v. Professional Air Traffic Controllers Organization, 453 F. Supp. 1287 (E.D.N.Y.), aff'd without opinion, 594 F.2d 851 (2d Cir. 1978), cert. denied, 441 U.S. 944, 99 S. Ct. 2163, 60 L. Ed. 2d 1046 (1979), the district court held that the 1970 injunction enjoined any strike activity by PATCO and found the union in contempt, ordering it to pay $100,000 damages to ATA.
PATCO next engaged in a slowdown in 1980, this time at Chicago's O'Hare International Airport. Although the government obtained a temporary restraining order, the district court dismissed the suit for a preliminary injunction for lack of subject matter jurisdiction. United States v. PATCO, 504 F. Supp. 432 (N.D.Ill.1980), rev'd, 653 F.2d 1134 (7th Cir.), cert. denied, 454 U.S. 1083, 102 S. Ct. 639, 70 L. Ed. 2d 617 (1981). The district court held that passage of Title VII had vested exclusive jurisdiction over strikes by federal sector unions or employees in the Federal Labor Relations Authority and had divested federal district courts of their formerly exercised jurisdiction under 28 U.S.C. § 1345 to enjoin such strikes as violations of 5 U.S.C. § 7311 and 18 U.S.C. §§ 2 & 1918. The Seventh Circuit reversed this decision on June 18, 1981, but in the meantime PATCO brought the instant motion for vacatur of the 1970 injunction for lack of jurisdiction, relying heavily on the opinion of the district court in United States v. PATCO, supra.
The district court here, 516 F. Supp. 1108, denied PATCO's motion for vacatur of the 1970 injunction for several reasons. First, Judge Platt found that he did not have to reach the question "whether this Court would have jurisdiction over the subject matter of this lawsuit were the suit filed today for the first time." Rather, relying principally on the facts that the court had jurisdiction to enter the injunction and that "strikes by federal employees continue to be illegal, 5 U.S.C. § 7311, and indeed criminal, 18 U.S.C. §§ 1918 and 2," he held that PATCO had not shown it would be "inequitable" to continue the injunction, which is the standard for relief under Rule 60(b)(5), Fed.R.Civ.Pro. In the alternative, Judge Platt said that the court had original jurisdiction over federal employee strikes based upon 5 U.S.C. § 7311, 18 U.S.C. §§ 1918 & 2, and the general federal question jurisdiction statute, 28 U.S.C. § 1331. Finally, he noted that "the integrity of the 1970 injunction would appear to be preserved via certain savings provisions in the (Act)."*fn2 PATCO appealed from Judge Platt's decision on June 18, 1981.
On August 3, 1981, while the appeal from the order of June 18 was pending, PATCO commenced a nationwide strike. Plaintiffs, ATA and fourteen of its member airlines, immediately sought an order from Judge Platt, to show cause why PATCO and three named individual defendants should not be held in contempt for violating the 1970 and 1972 injunctions and why a coercive fine should not be imposed on them. In an opinion delivered from the bench on August 4, Judge Platt found all the defendants in contempt, and assessed coercive fines against PATCO of $25,000 per day, as stipulated in the 1970 consent decree, and of an additional $100,000 per hour, to ensure compliance with the injunction. At ATA's request, Judge Platt agreed to enter judgment on the coercive fines day by day so that ATA could execute on the judgments immediately. Judge Platt also found both PATCO and the individual defendants liable for compensatory damages, the amounts to be determined later.*fn3
The court held further hearings on August 5 and 6, calling witnesses and determining that the strike was continuing, and assessing additional coercive fines against PATCO for each day. The amount of such fines totalled $4,475,000. No further coercive fines were assessed after August 6 because the Court found that the time had lapsed in which the PATCO members could return to their jobs and hence they could no longer purge themselves of contempt. On August 21, 1981, PATCO appealed from the judgments of contempt,*fn4 which appeal has been consolidated here with the appeal from the order denying PATCO's motion to vacate the 1970 injunction. Both sides agree that the contempt judgments and fines must fall if this court determines that the passage of Title VII ousted the district court from jurisdiction to enforce the 1970 injunction.
Title VII of the Civil Service Reform Act of 1978 establishes a comprehensive regulatory scheme to secure the "rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government." 5 U.S.C. § 7101(b). To this end, Congress created the Federal Labor Relations Authority, 5 U.S.C. § 7104, to which it entrusted responsibility "for carrying out the purposes of this chapter." 5 U.S.C. § 7105(a)(1). The Act sets forth management rights, representation rights and duties, defines unfair labor practices, and establishes grievance procedures. The FLRA was given extensive power to resolve disputes between agencies and labor organizations, primarily through the issuance of complaints of unfair labor practices and cease and desist orders.
In language taken almost verbatim from the Executive Order that it supplanted,*fn5 Title VII defines unfair labor practices to include the calling, participating, or condoning of a strike by a labor organization. 5 U.S.C. § 7116(b)(7)(A) & (B). The General Counsel of the FLRA is authorized to issue complaints against organizations (but not individuals) committing unfair labor practices, 5 U.S.C. § 7118(a)(4)(B), and the FLRA is authorized to issue cease and desist orders against such organizations after conducting a hearing on the matter, 5 U.S.C. § 7118(a)(6) & (7)(A). FLRA orders may be reviewed in the circuit courts of appeal. 5 U.S.C. § 7123(a). Alternatively, the FLRA may petition the circuit court for enforcement of its orders or for appropriate temporary relief. 5 U.S.C. § 7123(b). Finally, the FLRA may forego its own hearing and, upon the issuance of a complaint by the General Counsel, petition the district court in the district wherein the alleged unfair labor practice occurred for appropriate temporary relief. The act specifically provides that "(u)pon the filing of the petition, the court ... shall have jurisdiction to grant any temporary relief ... it considers just and proper." 5 U.S.C. § 7123(d). In short, Title VII authorizes the FLRA to proceed against striking federal sector unions in either of two ways: by the issuance of a cease and desist order and enforcement of that order by petition to a circuit court of appeals, or by petition to the district court for a temporary restraining order. The Act says nothing about the jurisdiction of the district courts to issue or enforce permanent injunctions against strikes in the federal sector.
PATCO suggests that we employ two presumptions to fill the void left by Congressional silence. It argues, first, that Congress intended to vest exclusive jurisdiction over unfair labor practices, including strike activity, in the FLRA, analogizing to the preemption by the National Labor Relations Board of state court jurisdiction to adjudicate unfair labor practices in the private sector. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959). Second, PATCO cites the rule of construction that a withdrawal of jurisdiction that is without restriction applies to pending cases, e.g., Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L. Ed. 264 (1869), arguing that such a withdrawal of jurisdiction must also apply to continuing jurisdiction over permanent injunctions, which are prospective and may be modified by the court at any time. Otherwise, says PATCO, Congress's intent in vesting exclusive jurisdiction in the FLRA will be frustrated. However, a review of the ...