Kramer, Mark Lee v. Rumsfeld, Donald

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2006 Decided March 6, 2007

No. 05-5385

MARK LEE KRAMER, ET AL.,

APPELLEES

V.

ROBERT M. GATES, SECRETARY, DEPARTMENT OF DEFENSE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 96cv00497)

Michael J. Ryan, Assistant U.S. Attorney, argued the

cause for appellant. On the briefs were Kenneth L. Wainstein,

U.S. Attorney at the time the brief was filed, R. Craig

Lawrence, Assistant U.S. Attorney, and Kevin K. Robitaille,

Special Assistant U.S. Attorney.

Daniel M. Schember argued the cause and filed the brief

for appellee.

Before: BROWN and KAVANAUGH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: The five plaintiffs here

are civilians who were employed as National Guard

Technicians in the Department of Defense until their

involuntary separation from service in 1993 and 1994. The

then-effective version of 5 U.S.C. § 3329 provided that

employees such as plaintiffs who were involuntarily separated

“shall, if appropriate written application is submitted within 1

year after the date of separation, be offered a position . . . not

later than 6 months after the date of the application.” 5 U.S.C.

§ 3329(b) (1992). Specifically, such technicians were entitled

to a competitive service position in the Department of Defense

for which the rate of basic pay was to be “not less than the

rate last received for technician service before separation.” 5

U.S.C. § 3329(c)(4) (1992).

Although plaintiffs submitted timely applications, the

Secretary of Defense failed to offer them appropriate positions

within the statutory time limit. In 1996 plaintiffs brought suit

in district court seeking equitable relief to enforce the

provisions of § 3329. The district court in due course found

that plaintiffs could bring suit in light of the partial waiver of

sovereign immunity in the APA, which permits district courts

to grant “relief other than money damages,” 5 U.S.C. § 702,

reasoning that plaintiffs sought only equitable relief that was,

in the language of our cases, “not negligible in comparison

with the potential monetary recovery.” See Kramer v. Cohen,

Civ. Action No. 96-497, Memorandum Order at 4 (D.D.C.

Apr. 8, 1997); Kidwell v. Department of Army, Board for

Correction of Military Records, 56 F.3d 279, 284 (D.C. Cir.

1995) (internal quotation marks omitted). On the merits the

court concluded that § 3329 impliedly gave plaintiffs a right

of action. Kramer v. Secretary of Defense, 39 F. Supp. 2d 54,

57–59 (D.D.C. 1999). Accordingly, the court issued a

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judgment ordering the defendants to change “the effective

date” of each plaintiff’s “competitive service appointment” to

a specified date six months after the submission of their

respective applications. The Secretary did not appeal.

One plaintiff (Ainslie) brought suit in the Court of

Federal Claims in 2001, seeking back pay for the period from

July 31, 1995 through January 7, 1996—the time between the

dates of his retroactive appointment and of his actual

reemployment with the Department. The Tucker Act waived

sovereign immunity for the claim, 28 U.S.C. § 1491, and the

cause of action rested on the Back Pay Act, 5 U.S.C. §

5596(b)(1), which affords an agency “employee” back pay to

correct certain “unjustified or unwarranted personnel

action[s].” The Court of Federal Claims observed that under 5

U.S.C. § 2105(a) an “employee” for purposes of Title 5 must

not only have been “appointed” in the civil service (as were

the five plaintiffs, per the district court’s order), but must have

fulfilled two additional requirements—have been (1)

“engaged in the performance of a Federal function under

authority of law or an Executive act” (2) while being “subject

to the supervision” of a specified class of officials. Because

Ainslie had not satisfied the additional requirements, the court

denied his claim. Ainslie v. United States, 55 Fed. Cl. 103,

106–08 (2003). The Federal Circuit affirmed this denial,

observing that “Ainslie seeks to erase the distinction between

being appointed and being employed.” Ainslie v. United

States, 355 F.3d 1371, 1374 (Fed. Cir. 2004). Ainslie fared no

better under § 3329. The Federal Circuit noted that § 3329

“contains no remedial language to recover money damages if

the federal government fails to comply with the statute,” id. at

1375, and accordingly rejected the idea that it provided an

implied right to such recovery.

In light of Ainslie’s lack of success before the Court of

Federal Claims and the Federal Circuit, all of the plaintiffs

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returned to the district court in 2005 seeking clarification of

its 1999 order. Under Federal Rule of Civil Procedure

60(b)(6), “[o]n motion and upon such terms as are just, the

court may relieve a party . . . from a final judgment, order, or

proceeding for . . . any . . . reason justifying relief from the

operation of the judgment.” The court granted plaintiffs’

motion and said:

Insofar as the court’s previous order was interpreted to

provide for only a change in the date of “appointment”

rather than the date of “employment,” the court is now

stating with “redundant clarity” that it intends for

plaintiffs to be deemed employed as well as appointed on

the dates they would have been employed had defendant

not violated 5 U.S.C. § 3329.

Kramer v. Rumsfeld, Civ. Action No. 96-00497, Order at 2

(D.D.C. Aug. 9, 2005).

Because relief under Rule 60(b)(6) is appropriate only in

“extraordinary circumstances,” Ackermann v. United States,

340 U.S. 193, 199 (1950), and such circumstances were

lacking with respect to all plaintiffs except Fangerow (in

regard to a portion of the relief granted him), we vacate the

district court’s order except for the relief afforded Fangerow

that falls properly within Rule 60(b)(6).

* * *

With one exception unique to plaintiff Fangerow, we

resolve this case on the ground that the district court

improperly exercised its authority to reopen a final judgment

and award relief under Rule 60(b)(6). Consequently, we need

not reach the larger jurisdictional question—whether the

district court’s 2005 order was in essence an award of money

damages in contravention of 5 U.S.C. § 702. Before we can

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reach this conclusion, though, we must answer two antecedent

questions. First, can a federal court, consistent with Steel

Company v. Citizens for a Better Environment, 523 U.S. 83

(1998), resolve a case on procedural grounds before

addressing a statutory obstacle to subject-matter jurisdiction?

Second, since the Secretary at no point has objected to the

district court’s authority to grant a Rule 60(b)(6) motion in

these circumstances, may we raise the issue on our own? The

answer is yes to both questions.

Steel Company makes clear that jurisdiction is a

“threshold matter,” id. at 94, and that a “federal appellate

court has a special obligation to satisfy itself not only of its

own jurisdiction, but also that of the lower courts in a cause

under review,” id. at 95 (internal quotation marks omitted).

We have from the outset understood the decision’s principal

concern to be assurance that courts exercise their “power to

declare the law,” id. at 94, only if possessed of jurisdiction. In

re Papandreou, 139 F.3d 247, 255 (D.C. Cir. 1998) (“a court

that dismisses on other non-merits grounds . . ., before finding

subject-matter jurisdiction, makes no assumption of law-

declaring power that violates the separation of powers

principles underlying . . . Steel Company.”). See also Galvan

v. Federal Prison Industries, Inc., 199 F.3d 461, 463 (D.C.

Cir. 1999); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,

584–85 (1999). We have considerable doubt whether an

interpretation of the limits of Rule 60(b)(6) qualifies as an

exercise of a court’s law-declaring power as Steel Company

used the concept, as the scope of Rule 60(b)(6) is far removed

from any effect on primary conduct. Compare Hanna v.

Plumer, 380 U.S. 460, 475 (1965) (Harlan, J., concurring)

(classifying rules affecting “primary decisions respecting

human conduct” as substantive for purposes of Erie Railroad

Co. v. Tompkins, 304 U.S. 64 (1938)).

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But even if a reading of Rule 60(b)(6) should be the sort

of law-declaring activity that courts must avoid until resolving

the issues made primary by Steel Company, those primary

issues related to Article III jurisdiction, not, as here, to a

statutory limit (even one classified as jurisdictional for many

purposes). Steel Company explicitly recognized the propriety

of addressing the merits where doing so made it possible to

avoid a doubtful issue of statutory jurisdiction; the case

excluded such jurisdiction from the rule of absolute priority

that it established for Article III jurisdiction. See Steel

Company, 523 U.S. at 96–97 & n.2. Because there is no

Article III issue here, but only an uncertainty as to the scope

of the waiver in 5 U.S.C. § 702, Steel Company poses no bar

to considering the application of Rule 60(b)(6).

Next, we must address whether we may resolve this case

on the impropriety of Rule 60(b)(6) relief when the appellant

failed to raise such an objection. Ordinarily we do not

consider non-jurisdictional issues that litigants didn’t raise and

that the district court didn’t resolve. United States ex rel.

Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir.

2004). But we have authority to raise issues on our own

motion when “the errors are obvious, or if they otherwise

seriously affect the fairness, integrity, or public reputation of

judicial proceedings.” United States v. TDC Management

Corp., 288 F.3d 421, 425 (D.C. Cir. 2002) (quoting United

States v. Atkinson, 297 U.S. 157, 160 (1936)). As we explain

in greater detail below, clear Supreme Court and circuit

precedent rendered Rule 60(b)(6) relief inappropriate (except

as to the portions of the decree unique to Fangerow).

The Supreme Court has noted that courts should grant

Rule 60(b)(6) motions only in “extraordinary circumstances.”

Ackermann, 340 U.S. at 199. See also Gonzalez v. Crosby,

545 U.S. 524, 535 (2005). We have similarly observed that

Rule 60(b)(6) “should be only sparingly used” and may not

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“be employed simply to rescue a litigant from strategic

choices that later turn out to be improvident.” Good Luck

Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir.

1980). For instance, the Supreme Court has held that

“extraordinary circumstances” are not present when in

hindsight it appears certain that an appeal, which was not

taken, would have been successful, Ackermann, 340 U.S. at

197–99, or when there has been an intervening change in case

law, Gonzalez, 545 U.S. at 536–38; Agostini v. Felton, 521

U.S. 203, 239 (1997). The Court has underscored the

stringency of the Rule by holding that the catch-all provision,

Rule 60(b)(6), is mutually exclusive with the grounds for

relief in the other provisions of Rule 60(b), which include

excusable neglect, newly discovered evidence, and fraud, all

three of which require that the motion be brought within one

year of the judgment from which relief is sought. See Pioneer

Investment Services Co. v. Brunswick Associates Ltd.

Partnership, 507 U.S. 380, 393 (1993). In short, plaintiffs

must clear a very high bar to obtain relief under Rule 60(b)(6).

Here, plaintiffs’ 1999 complaint sought only “appointment,”

not “employment,” despite an array of cases drawing a critical

distinction between the two. Plaintiffs have failed to identify

any reason why they could not have requested “employment”

at the outset. Although the failure to request an order of

“employment” here may not have been strategic in the

strictest sense of the term, it was clearly a litigation choice

that “turn[ed] out to be improvident” and one from which we

cannot rescue the plaintiffs. The case law makes clear that

Rule 60(b)(6) is not an opportunity for unsuccessful litigants

to take a mulligan.

For purposes of plaintiffs’ hoped-for recovery under the

Back Pay Act the retroactive “appointment” they initially

sought could not possibly have constituted “employment.”

The Back Pay Act defines an “employee” as someone who

has been appointed to the civil service, engaged in the

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performance of a federal function, and done so under the

supervision of an appropriate appointing authority, as defined

by the statute. 5 U.S.C. § 2105(a). The difference between

“employment” and “appointment” is more than semantic.

Someone who has received appointment might “never achieve

the status of employee,” Ainslie, 355 F.3d at 1374 (quoting

McCarley v. Merit Systems Protection Board, 757 F.2d 278,

280 (Fed. Cir. 1985)). Like the Federal Circuit, we have long

recognized the distinction between the two concepts. See,

e.g., National Treasury Employees Union v. Reagan, 663 F.2d

239, 246 (D.C. Cir. 1981).

Further, although we need not resolve the point,

plaintiffs’ omission of any request for an order declaring that

they had met the other two criteria for classification as an

“employee” under 5 U.S.C. § 2105(a) may well have been

strategic. It may have been designed either to obscure their

goal of compensation under the Back Pay Act (and thus to

enhance their argument that the relief sought in district court

was “not negligible in comparison with the potential monetary

recovery,” Kidwell, 56 F.3d at 284 (internal quotation marks

omitted)), or to divert attention from their apparent absence of

any intent to make up for the work they would have

performed had they actually been “engaged in the

performance of a Federal function,” 5 U.S.C. § 2105(a)(2),

during the disputed periods. In any event, as the need to seek

this classification was entirely obvious from the outset, there

was no occasion to use Rule 60(b)(6) to fill the gap

retroactively.

The portions of the district court’s Rule 60(b)(6) order

unique to Fangerow pose a different issue. The court ordered

the Secretary to offer Fangerow an appropriate “permanent,

non-term appointment” and further ordered that the Secretary

“shall not condition plaintiff’s acceptance of the appointment

upon repayment of his early retirement incentive payment,

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and plaintiff shall not be required to repay that payment to the

government.” Kramer v. Rumsfeld, Civ. Action No. 96-

00497, Order at 3 (D.D.C. Aug. 9, 2005).

This element of the order (rejection of the government’s

purported condition) rested on a peculiarity of Fangerow’s

case that plaintiffs’ counsel explained in seeking Rule

60(b)(6) relief. As had the other plaintiffs, Fangerow received

an offer of appointment based on the district court’s 1999

order. But “defendant informed plaintiff Fangerow that if

defendant were to offer and Fangerow were to accept the offer

required by . . . the Court’s [1999] judgment, defendant would

make Fangerow’s appointment a four-year term appointment.

Defendant then said that term appointees are not eligible for

early retirement incentive payments and that, because

Fangerow previously had accepted a $25,000 early retirement

incentive, he would have to return the $25,000 to the

government in order to receive the relief the Court had

ordered.” Memorandum in Support of Plaintiffs’ Motion at 5

n.2, Kramer v. Secretary of Defense, Civ. Action No. 96-

00497 (D.D.C. Aug. 9, 2005).

These are extraordinary circumstances that justify relief

under Rule 60(b)(6). Fangerow had independently received

an early retirement incentive and, later, a court-ordered offer

of appointment. But the Secretary indicated that he would

only conditionally comply with the district court’s order—i.e.,

only if Fangerow forfeited the early retirement incentive. If a

plaintiff receives a judgment, the liable party cannot normally

attach conditions to its fulfillment of the judgment; otherwise,

parties could willfully flout a court’s legitimate authority.

Here, so far as appears, Fangerow had no reason to think that

the government would try to condition its compliance with the

initial court order. Rule 60(b)(6) was thus an appropriate

avenue for him to seek and the court to grant clarification that

the offer of appointment was indeed independent of any

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earlier remuneration or incentive that Fangerow had received.

(We express no opinion, however, on the merits of the

modification, which the government does not challenge.) To

the extent that the pertinent segments of the 2005 order (the

first two sentences of paragraph 5) merely resolve this newly

arising problem, the district court properly exercised its

authority under Rule 60(b)(6). Furthermore, there can be no

jurisdictional objection to the court’s authority to issue the

clarification, as the court granted no additional relief but

simply instructed the Secretary that he must unconditionally

abide by the court’s 1999 order. As noted above, however,

the use of Rule 60(b)(6) to award Fangerow retroactive

“employment” was outside the legitimate use of the Rule.

* * *

The district court’s 2005 order is, except with respect to

the first two sentences of paragraph 5 (relating to plaintiff

Fangerow’s early retirement incentive), hereby vacated as

improper under Federal Rule of Civil Procedure 60(b)(6); the

order is affirmed as to the first two sentences of paragraph 5.

So ordered.