Noel Cummings v. Greater Clev Rgnl Transit Auth, et al

Filing

OPINION and JUDGMENT filed : AFFIRMED. Decision for publication. Jeffrey S. Sutton (AUTHORING), David W. McKeague, and Amul R. Thapar, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0171p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

NOEL CUMMINGS,
Plaintiff-Appellant,

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v.
GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY;
MICHAEL YORK; FELICIA BROOKS-WILLIAMS; BRUCE
E. HAMPTON; JOSEPH CALABRESE,
Defendants-Appellees.

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No. 16-4229

Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:14-cv-01729—James S. Gwin, District Judge.
Decided and Filed: August 3, 2017
SUTTON, McKEAGUE, and THAPAR, Circuit Judges.
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COUNSEL
ON BRIEF: Lawrence Mays, Cleveland, Ohio, Robert Smith III, Cleveland, Ohio, for
Appellant.
Kathleen M. Minahan, GREATER CLEVELAND REGIONAL TRANSIT
AUTHORITY, Cleveland, Ohio, for Appellees.
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OPINION
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SUTTON, Circuit Judge. Noel Cummings settled her claims with her former employer,
the Greater Cleveland Regional Transit Authority. A year and a half later, she sought to undo
the settlement because it did not provide some of the benefits she thought it would. The district
court rejected her motion to vacate as time barred. We agree and affirm.

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Cummings spent twenty seven and a half years working for the Greater Cleveland
Regional Transit Authority. During that time, she alleges, the Authority paid her less than her
male colleagues and refused to promote her when she complained about the disparity. Unable to
resolve her grievances, she filed a lawsuit claiming employment discrimination, First
Amendment retaliation, and violations of the Equal Protection Clause.
After several back-and-forth discussions, the parties brokered a settlement on February 4,
2015. As part of the bargain, the Authority agreed to pay Cummings $45,000 and to suspend her
for a six-month period at a pay rate of $600 per month. For the following year and a half, the
Transit Authority would allow Cummings to exhaust her paid leave at her regular salary. Then,
if Cummings had not obtained other public sector employment with corresponding state
retirement benefits, the Authority would again place her on a six-month suspension at the same
$600 monthly rate through January 31, 2017, or the first date she became eligible to retire with
thirty years of retirement service credit, whichever came first. In exchange, Cummings agreed to
waive all rights to reinstatement or reemployment and to release the Authority from “any and all
claims . . . arising out of or related in any way to her employment.” R. 61-4 at 3.
All’s well that ends well, it seemed. But on July 15, 2016, Cummings asked the Ohio
Public Employees Retirement System for a calculation of her retirement service credit under the
settlement agreement.

The state pension system told her that she would not accumulate

additional retirement credit under the settlement because the payments did not count as “earnable
salary” under Ohio law. On that basis, Cummings returned to the district court that entered the
settlement agreement and asked to vacate the judgment and reinstate her complaint. The court
rejected her motion as time barred under Civil Rule 60(b)(1), which permits motions to vacate a
judgment in the event of “mistake, inadvertence, surprise, or excusable neglect” filed within one
year of the judgment. Cummings appealed.
In seeking to undo this final judgment, Cummings faces a steep uphill climb. There is a
deeply embedded judicial and legislative policy in favor of keeping final judgments final.
See Ackermann v. United States, 340 U.S. 193, 198 (1950); Waifersong, Ltd. Inc. v. Classic
Music Vending, 976 F.2d 290, 292 (6th Cir. 1992). That is especially true for settlement
agreements. A settlor’s remorse cannot alone justify abandoning such judgments. Else, the key

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virtue of settling cases—letting the parties move on after they each get some of what they
want—would be lost.
Rule 60(b) offers an exception to these principles. GenCorp, Inc. v. Olin Corp., 477 F.3d
368, 372 (6th Cir. 2007). It provides six discrete paths for undoing a final judgment. Only four
have any potential relevance here: 60(b)(1)—“mistake, inadvertence, surprise, or excusable
neglect”; 60(b)(3)—“fraud . . . , misrepresentation, or misconduct by an opposing party”;
60(b)(5)—where “applying [the judgment] prospectively is no longer equitable”; and 60(b)(6)—
“any other reason that justifies relief.” Fed R. Civ. P. 60(b). A motion under Rule 60(b)(1) or
(3) must be “made no more than a year after the entry of the judgment or order or the date of the
proceeding.” Id. 60(c)(1). Rule 60(b)(5) and (6) motions are more forgiving. They may be filed
“within a reasonable time.” Id.
The district court properly concluded that Cummings’ motion fits most naturally under
Rule 60(b)(1) because at bottom it alleges a mistake. According to Cummings, she agreed to
settle her case only in order to obtain thirty years of retirement service with the Authority. But
that assumption, as we now know, was premised on her (or her lawyer’s) mistake about the
interpretation of the State’s retirement law. Because Cummings filed her motion more than a
year after the court entered judgment in her case, the district court properly dismissed the motion
as late.
Matters do not improve if we shift our gaze to Rule 60(b)(3). Cummings separately
alleges that the Authority knew that the payments would not constitute “earnable salary” at the
time of the settlement negotiations. Yet if that allegation is true, that takes us to (b)(3), which
covers “fraud . . . , misrepresentation, or misconduct by an opposing party.” Id. 60(b)(3). Rule
60(b)(3) motions, like Rule 60(b)(1) motions, must be made within one year of judgment. Same
conclusion, regrettably for her.
That leaves Cummings’ effort to obtain relief under Rule 60(b)(5) or (6). Those motions,
it is true, give her more time—a “reasonable” amount of time—a requirement she could meet
here. But that potential benefit does not allow her to escape the true nature of her claims.
Cummings’ only arguments—even those purporting to show the inequity of applying the

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settlement today—rest on misrepresentation and mistake. The one-year limitation period for
Rule 60(b)(1) and (3) motions would mean little if advocates could sidestep it whenever they
wished by attaching a Rule 60(b)(5) or (6) label to the motion.
Even on its own terms, as it happens, her motion fails under Rule 60(b)(5) and (6). Rule
60(b)(5) provides for vacatur “when the party seeking relief . . . can show ‘a significant change
either in factual conditions or in law.’” Agostini v. Felton, 521 U.S. 203, 215 (1997) (quotation
omitted). Cummings shows neither. She does not argue a change in law or fact. She argues that
she failed to apprehend the consequences of existing law at the time of the settlement. That’s a
Rule 60(b)(1) problem, not a Rule 60(b)(5) problem. No more helpful is Rule 60(b)(6). It
covers “any other reason that justifies relief.” Cummings has offered no other reason. She
grounds her motion in the very things covered by the preceding prongs of Rule 60(b), namely
prongs (1) and (3). See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
393 (1993). Even if we construed Cummings’ motion as a Rule 60(b)(5) or (6) motion, it would
be a losing one.
Cummings last of all points out that the district court retained jurisdiction over the case to
“resolve disputes concerning the memorialization of this settlement agreement” under Kokkonen
v. Guardian Life Ins. Co., 511 U.S. 375 (1994). R. 43. True enough. But that reality offers no
sanctuary. Kokkonen addresses the circumstances under which the district court retains ongoing
jurisdiction to enforce a settlement. 511 U.S. at 378. Cummings does not seek to enforce this
settlement agreement. Just the opposite: She seeks to vacate it. That sort of relief, as Kokkonen
itself reminds us, finds its roots in Rule 60(b) vacatur, not any general jurisdiction to oversee,
much less uproot, the terms of a settlement. Id.
For these reasons, we affirm.