Friday, August 5, 2011

Decision of Interest: Sharply Divided En Banc Fourth Circuit on Rule 60(b)(6)

Last month the en banc U.S. Court of Appeals for the Fourth Circuit, splitting 7-to-5, affirmed a district court’s refusal to grant a motion for relief from judgment under Rule 60(b)(6). The case is Aikens v. Ingram, No. 08-2278, 2011 WL 2725811 (July 13, 2011), and the majority opinion by Judge Niemeyer begins:

Frederick Aikens, formerly a colonel in the North Carolina Army National Guard, commenced this action against his former colleagues, Adjutant General William Ingram and Lieutenant Colonel Peter von Jess, alleging that they violated his Fourth Amendment rights by wrongfully intercepting, reading, and forwarding his e-mails while he was deployed in Kuwait. The district court dismissed the action without prejudice, concluding that it lacked subject matter jurisdiction because of Colonel Aikens' failure to exhaust any available intra-military remedies. The court entered a judgment of dismissal on September 14, 2007.

Although Colonel Aikens held the firm belief that the district court had erred, he did not appeal, nor did he seek a stay to assure the district court's continuing jurisdiction over the matter. Aikens did file his claim with the Army Board for Correction of Military Records (“ABCMR”), but then, when the Board determined that it could not provide him with the relief that he sought, he did not file another action in the district court. Rather, he sought to reopen the September 14, 2007 judgment by filing a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6), several months after that action had become final and unappealable. The district court denied the Rule 60(b)(6) motion in the exercise of its discretion, reasoning that Colonel Aikens had failed to establish the extraordinary circumstances necessary under Rule 60(b)(6) for granting relief from the September 14, 2007 judgment.

For the reasons that follow, we conclude that the district court did not abuse its discretion and thus affirm.

Judge King’s dissent begins:

A majority of our en banc Court imposes the severest of sanctions against Colonel Aikens for his lawyer's failed, but sincere attempt to have the district court address the merits of Aikens's claim that his former military associates engaged in deplorable conduct that worked a serious deprivation of his civil rights. Having concluded, wrongly, that it lacked authority to decide the dispute, the district court dispatched Aikens to embark on a futile quest to vindicate its jurisdictional theory. Though the court believed itself rid of the matter, it was required by long-standing Supreme Court precedent to nonetheless retain the case and enter a stay sua sponte.The district court instead erroneously dismissed it, assuring Aikens that he “may return to federal court” if he truly belonged there. Aikens v. Ingram, 513 F.Supp.2d 586, 592 (E.D.N.C.2007).

Aikens took the court up on its offer, accepting its invitation to return after verifying that proceeding before the Army Board for Correction of Military Records (the “ABCMR”) was unnecessary. That process took less than seven months, an accomplishment that, given the oft-glacial pace of civil litigation, can hardly be criticized. But because counsel sought to attract the district court's attention through a timely Rule 60(b) motion rather than risking his client's cause by filing a potentially untimely new complaint, the court yanked the welcome mat from beneath Aikens's feet. Now, on appeal, the en banc majority has failed to appreciate that this entire predicament was not the result of counsel's disputably poor choices, but was instead caused by the district court's demonstrably wrong ones. Unwilling to lend my sanction to the injustice below, I must dissent.

Judge Diaz, who joined the majority opinion, wrote to clarify that while he agreed with the majority that it was not an abuse of discretion to deny Rule 60(b)(6) relief, he would also have affirmed a district court decision granting Rule 60(b)(6) relief, in light of the discretionary standard of review. He writes:

Were I the district judge in this case, I might well have reached a conclusion different from that below and granted Aikens's Rule 60(b)(6) motion. And if I did so, my opinion likely would have resembled the principal dissent. Once a case reaches our court, however, the applicable standard of review often forecloses us from substituting our judgment for that of the district court. While the principal dissent convincingly demonstrates that the district court could have granted Aikens's motion, it fails to establish that failure to grant the motion was so beyond the pale that it constitutes an abuse of discretion. The dissenters' view of the appropriate standard comes perilously close to endorsing a system where this court zealously accords deference to district judges—but only when they reach the decisions that we would have reached in the first instance.


(Hat Tip: Scott Dodson)

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