dissenting:
This Court may overturn a district court’s ruling on a Rule 60(b) motion only upon a clear showing of abuse of discretion. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 263 n.7, 98 S.Ct. 556, 560 n.7, 54 L.Ed.2d 521; Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53, 56 (2d Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 166, 50 L.Ed.2d 140 (1976). Because I believe it is both unwise and unfair for this Court to hold that District Judge Bonsai clearly abused his discretion, just so we may explicate for New York State’s Human Rights Commission what it should know to be the law, I dissent.
Judge Bonsai interpreted the language of the Rule 41 stipulation to mean that the stipulation did not bar appellants from pursuing their State claims. Magistrate Sinclair’s opinion, which was adopted by Judge Bonsai, held that “any state claims movants may have on age discrimination grounds were merely stayed by this action, and the stipulation preserves whatever vitality they may have.” (Emphasis in original.) Referring to the stipulation’s ban against further litigation, the Magistrate said:
That this provision refers only to ADEA claims, and not state claims seems quite obvious; the Secretary has absolutely no power to extinguish movants’ state claims and this Court has no power over movants’ state statutory rights.
My colleagues say that Judge Bonsai and Magistrate Sinclair erred and that the stipulation was in fact ambiguous. However, they do not stop there. Without a hearing, without a word of testimony from Pan American which paid the Secretary $900,000 on the basis of the stipulation as written, my colleagues now proceed to rewrite it. In so doing, they put words in the mouths of Pan American’s representatives which those representatives emphatically deny having uttered. I respectfully suggest that, in so doing, my colleagues err, not once, but twice.
A Rule 60(b) motion is considered to be “ancillary to or a continuation of the original suit.” Bankers Mortgage Co. v. United States, 423 F.2d 73, 78 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970) (citing 7 Moore’s Federal Practice ¶ 60.28[1] & [3]). Accordingly, the Rule specifically provides that only a party “or his legal representative” may seek relief under its provisions. See National Acceptance Co. v. Frigidmeats, Inc., 627 F.2d 764, 766 (7th Cir. 1980); 11 Wright & Miller Federal Practice and Procedure § 2865, at 225-26; 7 Moore’s Federal Practice $ 60.28[3], at 406. The Commission, which does not have $900,000 invested in the challenged stipulation, graciously states that it has no objection to its modification. Realizing at the same time, however, that it will be bringing other section 17 actions and attempting to make binding settlement agreements therein, the Commission argues:
However, to the extent movants are seeking to reopen or intervene in this action, or to file a new federal ADEA action based on the same events, the Commission submits that the district court properly denied their motion to amend the stipulation of dismissal entered into by the government and Pan Am. The filing of a federal ADEA action by the government terminates the right of individual employees ‘to bring an action’ under the ADEA or ‘to become a party plaintiff to any such action.’ 29 U.S.C. 626(b), 626(c)(1); 29 U.S.C. 216(b). Thus, as the district court properly held, the movants *1055have no standing to challenge the settlement between the Department of Labor and Pan Am because they were neither parties in the government’s suit nor in privity with the government. (EEOC’s Brief at 8.)
The Commission cannot have it both ways. If my colleagues are not permitting appellants to reopen or intervene in the litigation between the Commission and Pan American by seeking and securing an amendment of the Rule 41 stipulation, I am at a loss to know what they are permitting appellants to do. The majority establish a bad precedent when they permit appellants to challenge the two-year-old dismissal with prejudice of a suit in which appellants could not have participated. 29 U.S.C. § 626(c); See Western Steel Erection Co. v. United States, 424 F.2d 737, 739 (10th Cir. 1970).
My colleagues establish an equally bad precedent when they order an amendment of the Rule 41 stipulation without first having given Pan American a proper hearing. Federal Deposit Insurance Corp. v. Alker, 234 F.2d 113, 116-17 (3d Cir. 1956). “[A] dismissal with prejudice is a final judgment on the merits”, Cleveland v. Higgins, 148 F.2d 722, 724 (2d Cir.), cert. denied, 326 U.S. 722, 66 S.Ct. 27, 90 L.Ed. 428 (1945), and “a court cannot deprive a successful party of his judgment without a proper hearing”, Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447 (1946). See Klapprott v. United States, 336 U.S. 942, 69 S.Ct. 384, 93 L.Ed. 1099 (1949).
My quarrel with the majority may be summarized briefly. If 29 U.S.C. § 626(c)(1) permits of more than one interpretation of the Rule 41 stipulation, my colleagues are depriving Pan American of due process by amending the stipulation over Pan American’s objection without giving it the benefit of a full and proper hearing. If section 626(c)(1) permits of only one interpretation of the stipulation, there is no need for my colleagues to amend it.
There may be a rare occasion when a hard case should be permitted to make bad law. This is not one of them. If the New York State Human Rights Commission has misinterpreted the law, I have full confidence in both the willingness and ability of the New York State courts to see that the error is corrected.