EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. CBS, INC., Defendant-Appellant

748 F.2d 124

36 Fair Empl.Prac.Cas. 575,
35 Empl. Prac. Dec. P 34,847,
5 Employee Benefits Ca 2531
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee,
v.
CBS, INC., Defendant-Appellant.

No. 1295, Docket 84-6063.

United States Court of Appeals,
Second Circuit.

Submitted Nov. 9, 1984.
Decided Nov. 21, 1984.

Mark S. Flynn, Atty., E.E.O.C., Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., Robert E. Kopp, Douglas Letter, Attys., Dept. of Justice, Washington, D.C., Johnny J. Butler, Gen. Counsel (Acting), Philadelphia, Pa., Philip B. Sklover, Associate Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, E.E.O.C., Washington, D.C., of counsel), for plaintiff-appellee.

Thomas R. Stritter, New York City (George A. Stohner, Morgan, Lewis & Bockius, Washington, D.C., Judith A. Moldover, New York City, of counsel), for defendant-appellant.

Before: CARDAMONE, PRATT, and DANIEL M. FRIEDMAN of the United States Court of Appeals for the Federal Circuit, sitting by designation, Circuit Judges.

PER CURIAM:

1

EEOC has moved for an order withdrawing the panel's opinion, vacating our judgment and dismissing this interlocutory appeal as moot as a result of the enactment of P.L. 98-532, which ratified the reorganization plan at issue here. See EEOC v. CBS, Inc., 743 F.2d 969 (2d Cir.1984). CBS opposes the motion, arguing essentially that the relief requested is unnecessary and imprudent in light of the concluding paragraph of our opinion which reads:

2

The order of the district court is reversed and the action is remanded to the district court with a direction to dismiss the complaint. The judgment to be entered on this appeal shall be stayed until December 31, 1984. If prior to that date congress shall pass legislation affecting the authority of the plaintiff to maintain this action, the district court shall then conduct such further proceedings as may be appropriate.

3

743 F.2d at 976.

4

We deny the motion. The panel's opinion and resulting judgment contemplated possible remedial action by congress, which has now occurred. As a result of our opinion and judgment, therefore, the case has been remanded to the district court for further proceedings as may be appropriate, including, if necessary, a trial on the merits of plaintiff's underlying ADEA claim.

5

Motion denied.