Oscar Salazar v. DC

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2010 Decided February 8, 2011

No. 10-7031

OSCAR SALAZAR, BY HIS PARENTS AND NEXT FRIENDS,

ADELA AND OSCAR SALAZAR, ET AL.,

APPELLEES

v.

DISTRICT OF COLUMBIA AND VINCENT C. GRAY,

IN HIS OFFICIAL CAPACITY AS

MAYOR OF THE DISTRICT OF COLUMBIA,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:93-cv-00452)

Richard S. Love, Senior Assistant Attorney General, Office

of the Attorney General for the District of Columbia, argued the

cause for appellant. With him on the briefs were Peter J.

Nickles, Attorney General, Todd S. Kim, Solicitor General, and

Donna M. Murasky, Deputy Solicitor General.

2

Kathleen L. Millian argued the cause for appellees. With

her on the brief were Bruce J. Terris and Zenia Sanchez Fuentes.

Lynn E. Cunningham and Martha J. Perkins entered

appearances.

Before: ROGERS and GRIFFITH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The District of Columbia appeals

the denial of a motion pursuant to Rule 60(b)(6) of the Federal

Rules of Civil Procedure to vacate an order on dental services

under a settlement agreement regarding medical services for

children eligible for Medicaid. The district court ruled that the

motion was untimely and, alternatively, that the challenge to its

authority to order relief exceeding the federal standards

underlying the settlement agreement lacked merit in view of its

authority to enforce the agreement. On appeal, the District

government contends that the district court erred in dismissing

the motion as untimely, and abused its discretion by imposing

requirements that exceed the parties’ settlement agreement.

The circumstances do not indicate that the motion to vacate

was untimely. In the context of institutional reform litigation,

which contemplates ongoing district court proceedings as

occurred here, the parties continued to attempt to resolve their

differences regarding compliance with the dental order, with the

district court’s encouragement. On January 27, 2006, the court-

appointed monitor filed a report indicating that goals set by the

dental order were unrealistic and a new evaluation was

warranted. The District government filed its motion to vacate

four months later. Nonetheless, the district court could properly

find that the District government failed to show the requisite

extraordinary circumstances to warrant relief under Rule

3

60(b)(6). The legal argument that the district court exceeded its

authority by requiring the District government to engage in

activities to which the parties did not agree and that are not

required by federal law could have been raised on appeal from

the dental order; the District government noticed an appeal and

then withdrew it. Accordingly, we affirm the denial of the Rule

60(b)(6) motion.

I.

This appeal arises in the context of a complex remedial

order concerning medical services and assistance provided by

the District of Columbia government pursuant to the Medicaid

provisions of the Social Security Act, 42 U.S.C. §§ 1396a,

1396d (Chapter 19). On January 22, 1999, the settlement

agreement between the plaintiff class (“appellees”) and the

District government was approved and entered as an order by

the district court. The Settlement Order provides in paragraph

36 that the District government “shall provide or arrange for the

provision of early and periodic screening, diagnosis, and

treatment (EPSDT) services when they are requested by or on

behalf of children.” As relevant, appellees filed two motions to

enforce the provisions relating to dental care.

First, on July 3, 2002, appellees moved to enforce

Paragraph 36 in part because in 2001 only 30.65% of eligible

children received dental services and only 20.55% received

preventive dental services. By order entered seven months later,

the district court found that the District government was in

violation because its own reports showed that “the vast majority

of children within the class covered by this litigation who should

receive lead blood screening and dental services are not getting

them.” Mem. Op. (Feb. 28, 2003) at 1. The District government

was ordered to: (1) notify, at least annually, dental care

providers of the Medicaid requirements; (2) require each

4

managed care organization to develop a corrective action plan;

and (3) mail, by April 15, 2003, to all households in the District

of Columbia with one or more Medicaid-eligible children a

written notice describing the dental benefits. The district court

also ordered the court-appointed monitor to prepare a report by

May 15, 2003 evaluating the effectiveness of these efforts.

Second, after the monitor filed his report on June 17, 2003

recommending improved strategies for the broader provision of

dental services, appellees again moved to enforce the Settlement

Order on April 23, 2004. Six months later, in view of its

conclusion the District government had violated Paragraph 36,

the district court ordered various remedial measures to increase

the rate at which children were receiving dental care. The

District government was ordered to: (1) develop a dental

periodicity schedule that complies with generally accepted

dental standards; (2) develop a corrective action plan for

ensuring that all Medicaid-eligible children receive dental

services, including increased provider participation, provider

training, and outreach; and (3) meet specific participation goals,

ranging from 70% to 85%, depending on age, no later than

September 30, 2007. Order of Oct. 18, 2004 (“the Dental

Order”).

The District government noted an appeal from the Dental

Order on November 16, 2004. On January 27, 2005, however,

it moved to hold the appeal in abeyance pending its filing a

motion in the district court to “dissolve” the Dental Order.

Then, on March 15, 2006, the District government moved to

dismiss the appeal, which motion was granted, see Order, No.

04-7200 (D.C. Cir. Mar. 15, 2006). The monitor had filed a

report on January 27, 2006, pursuant to the district court’s order

of September 14, 2005, outlining strategies to enhance access to

dental care for Medicaid-eligible children and suggesting that

evidence from the several states and the standard of 57% set by

5

the U.S. Department of Health and Human Services indicated

that the Dental Order set unrealistic dental utilization rates and

should be reevaluated.

Four months later, on May 26, 2006, the District

government filed a motion to vacate the Dental Order on the

ground that the district court had exceeded its authority. The

District government argued: (1) the evidence did not support a

finding it had violated the Settlement Order by failing to provide

and arrange for appropriate dental services upon request; (2) the

remedial relief was not tailored to cure a constitutional or

federal law violation; (3) it was placed in the position of being

an insurer of dental care under an inequitable strict liability

standard; and (4) the relief “[v]astly [e]xceeds the [s]tandards set

by the [f]ederal and [l]ocal [a]gencies [a]dministering” the

Medicaid program for children’s medical care. Memorandum

of Points and Authorities in Support of Defendants’ Motion to

Vacate Order Granting Injunctive Relief Dated October 18, 2004

at 3–4, Salazar v. District of Columbia, No. 93-cv-452 (D.D.C.

May 26, 2006), ECF No. 1153. The motion did not reference

the monitor’s January 27, 2006 report although it referred to a

2000 report by the General Accounting Office indicating the

limited effect of payment increases on provider participation

that was also cited in the monitor’s report.

Additionally, in response to appellees’ opposition, the

District government argued that continued enforcement of the

Dental Order was unjust and that it was entitled to relief because

the Dental Order imposed obligations beyond those negotiated

by the parties, and under Rule 60(b)(6) the district court has “a

large degree of discretion in granting relief.”1 Defendants’

1

Although the District government’s reply also argued that

it was entitled to relief under Rule 60(b)(5), it states on appeal that it

relied only on Rule 60(b)(6). See Appellant’s Br. 11; Appellee’s

6

Reply to Plaintiff’s Opposition to Defendants’ Motion to Vacate

the Court’s Injunction of October 18, 2004 at 5, Salazar v.

District of Columbia, No. 93-cv-452 (D.D.C. Sept. 12, 2006),

ECF No. 1219. The reply argued that the monitor’s January 27,

2006 report showed that the Dental Order’s requirement of an

80% participation rate by 2007 is (in the District government’s

words) “utterly unrealistic and may not be achievable at all.” Id.

at 6. It also noted “the lack of any direct evidence of any

member of the plaintiff class having been effectively denied

dental services to which they are entitled.” Id. at 7. It

concluded:

This is an extreme case, the Dental Order requires the

District [government] achieve a result that the Court’s

Monitor [h]as opined to be unachievable with tools the

Monitor has found unlikely to succeed. Rule 60(b)(6)

was designed for just such an occasion.

Id.

The district court denied the motion to vacate on February

18, 2010 (over 3 ½ years after it was filed). It ruled that the

motion was untimely because it was filed nineteen months after

the Dental Order was entered, noting the District government’s

“inexplicable delay.” Salazar v. District of Columbia, 685 F.

Supp. 2d 72, 75 (D.D.C. 2010). The district court concluded no

subsection of Rule 60(b) authorized the motion at this late date,

noting that Rule 60(b) required a motion to be filed within a

“reasonable time,”and that it is not a substitute for appeal. The

district court concluded relief under Rule 60(b)(6) was

unwarranted because the District government had identified no

Br. 21.

7

“exceptional or extraordinary circumstances.”2 Id. at 12. The

district court also rejected the challenge to its authority

inasmuch as the Dental Order enforces “with great specificity”

paragraphs 36, 49, 52, and 57 of the Settlement Order. Id. at

10–11. The district court observed that “[v]irtually all of the

legal arguments have previously been examined and rejected,”

and that the new argument — that the Dental Order required

relief in excess of federal standards — was not dispositive

because the Settlement Order embodied and held the parties to

their voluntary agreement, citing Frew ex rel. Frew v. Hawkins,

540 U.S. 431, 439 (2004). On May 26, 2010, the district court

denied the District government’s motion for a stay.

The District government appeals, contending that the

district court abused its discretion in denying the motion to

vacate as untimely and exceeded its authority by imposing

requirements in the Dental Order beyond the parties’ settlement

agreement.

II.

Federal courts “long ago established” that they “would not

alter or set aside their judgments after the expiration of the term

at which the judgments were finally entered.” Hazel-Atlas Glass

Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944) (citing

Bronson v. Schulten, 104 U.S. 410 (1881)), overruled on other

grounds by Standard Oil Co. of Cal. v. United States, 429 U.S.

17, 18 & n.2 (1976). If the district court or court of appeals was

2

The district court also addressed relief under other

provisions of Rule 60(b) and Rules 52 and 59. See Salazar, 685 F.

Supp. 2d at 75–76. The District government’s states that none of these

rules were invoked by it in the district court, Appellant’s Br. 11;

accord Appellees’ Br. 13, and its brief on appeal does not address

them.

8

in the same term in which the challenged judgment was entered

“the judge ‘had plenary power . . . to modify his judgment for

error of fact or law or even revoke it altogether.’” United States

v. Beggerly, 524 U.S. 38, 42–43 (1998) (quoting Zimmern v.

United States, 298 U.S. 167, 169–70 (1936)). From the

beginning, however, there also was “a rule of equity to the effect

that under certain circumstances . . . relief will be granted

against judgments regardless of the term of their entry.” Id. But

to obtain such relief, “resort had to be made to a handful of

writs, the precise contours of which were ‘shrouded in ancient

lore and mystery.’” Id. at 43 (quoting FED. R. CIV. P. 60

advisory committee’s note on 1946 amendment).

The Supreme Court, in fashioning Rule 60(b), “took notice

of the fact that the terms of the district court may vary in length

and that the expiration of the term might occur very soon, or

quite a long time, after the entry of a judgment.” Hazel-Atlas

Glass, 322 U.S. at 255–56 (Roberts, J., dissenting). The Court

did not, however, disturb the equitable principles that embodied

prior practice. “Rule 60(b) does not provide a new remedy at

all, but is simply the recitation of pre-existing judicial power.”

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 234–35 (1995).

In 1938 the Court promulgated a uniform rule permitting a

motion to relieve a party from a judgment but requiring that the

motion be made “within a reasonable time, but in no case

exceeding six months after such judgment, order, or proceeding”

and only where the order or proceeding was taken “through [the

movant’s] mistake, inadvertence, surprise, or excusable

neglect.” FED. R. CIV. P. 60(b) (1938), reprinted in James Wm.

Moore & Elizabeth B.A. Rogers, Federal Relief from Civil

Judgments, 55 YALE L.J. 623, 632 (1946). Nonetheless, the

“salutary rule as to finality” was retained and, after six months

the judgment, order, or proceeding could not be challenged

9

except by a proper collateral action. Hazel-Atlas, 322 U.S. at

256 (Roberts, J., dissenting).

In 1948, Rule 60(b) was amended to “grant[] courts a

broader power to set aside judgments than did the old rule.”

Klapprott v. United States, 335 U.S. 601, 609 (1949). The

amended rule established six grounds for relief, extended the

time limitation from six months to one year for the first three

grounds — excusable neglect, newly discovered evidence, and

fraud — and provided that the latter three — a void judgment;

a judgment that has been satisfied, relies upon a prior judgment

that has been reversed, or would be inequitable to have

prospective application; or for any other just reason — have no

specific time limit and need only be brought within a

“reasonable time.” Rule 60(b) remains virtually unchanged

since 1948.3 It has three important limitations: First, Rule 60(b)

3

Rule 60(b) was amended in 1987, but the advisory

committee notes describe the amendment as “technical” and that “[n]o

substantive change [was] intended.” FED. R. CIV. P. 60 advisory

committee’s note on 1987 amdt. Similarly, Rule 60(b) was amended

in 2007 “as part of the general restyling of the Civil Rules to make

them more easily understood and to make style and terminology

consistent throughout the rules. These changes [were] intended to be

stylistic only.” FED. R. CIV. P. 60 advisory committee’s note on 2007

amdt. The reference in the final sentence that relief is available by a

motion or independent action was “deleted as unnecessary.” Id. Rule

60(b)–(e), as presently constituted, reads:

(b) Grounds for Relief from a Final Judgment, Order, or

Proceeding. On motion and just terms, the court may relieve

a party or its legal representative from a final judgment, order,

or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence,

could not have been discovered in time to move for a new

10

includes a “requirement that the motion ‘be made within a

reasonable time’ and the more specific 1-year deadline for

asserting three of the most open-ended grounds of relief

(excusable neglect, newly discovered evidence, and fraud).”

Gonzalez v. Crosby, 545 U.S. 524, 534 (2005) (quoting FED. R.

CIV. P. 60(c)). Second, the Supreme Court cases have required

a movant seeking relief under Rule 60(b)(6) to show

“‘extraordinary circumstances’ justifying the reopening of a

final judgment.” Id. (quoting Ackermann v. United States, 340

U.S. 193, 199 (1950)). Finally, “Rule 60(b) proceedings are

subject to only limited and deferential appellate review.” Id.

trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it

is based on an earlier judgment that has been reversed or

vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

(c) Timing and Effect of the Motion.

(1) Timing. A motion under Rule 60(b) must be made within

a reasonable time--and for reasons (1), (2), and (3) no more

than a year after the entry of the judgment or order or the date

of the proceeding.

(2) Effect on Finality. The motion does not affect the

judgment’s finality or suspend its operation.

(d) Other Powers to Grant Relief. This rule does not limit

a court’s power to:

(1) entertain an independent action to relieve a party from a

judgment, order, or proceeding;

(2) grant relief under 28 U.S.C. § 1655 to a defendant who

was not personally notified of the action; or

(3) set aside a judgment for fraud on the court.

(e) Bills and Writs Abolished. The following are abolished:

bills of review, bills in the nature of bills of review, and writs

of coram nobis, coram vobis, and audita querela.

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A.

“Rule 60(b)(6) . . . grants federal courts broad authority to

relieve a party from a final judgment ‘upon such terms as are

just,’ provided that the motion is made within a reasonable time

and is not premised on one of the grounds for relief enumerated

in clauses (b)(1) through (b)(5).” Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 863 (1988). That is, its

provisions are “mutually exclusive” to the extent that subsection

(6) cannot be used to avoid the one-year limitation in

subsections (1)–(5), such that “a party who failed to take timely

action due to ‘excusable neglect’ [within one year] may not seek

relief more than a year after the judgment by resorting to

subsection (6).” Pioneer Inv. Servs. Co. v. Brunswick Assocs.

Ltd. P’ship, 507 U.S. 380, 393 (1993). See also Twelve John

Does v. District of Columbia, 841 F.2d 1133, 1140 (D.C. Cir.

1988).

Rule 60(b)’s concern with finality, embodied originally in

the term rule, subsequently in the strict six-month rule, and now

in the “reasonable time” requirement, does not carry the same

significance in long-running equitable relief as it would in an

action where the court’s role had ended and the litigants relied

on the repose inherent in the end of litigation. As this court has

emphasized, “[t]he power of a court of equity to modify a decree

of injunctive relief . . . is long-established, broad, and flexible.”

United States v. W. Elec. Co., 46 F.3d 1198, 1202 (D.C. Cir.

1995) (quoting New York State Ass’n for Retarded Children, Inc.

v. Carey, 706 F.2d 956, 967 (2d Cir.) (Friendly, J.), cert. denied,

464 U.S. 915 (1983)). See generally CHARLES A. WRIGHT, ET

AL., FEDERAL PRACTICE & PROCEDURE § 2961 (2010).

Importantly, the Supreme Court observed:

The upsurge in institutional reform litigation since

Brown v. Board of Education, 347 U.S. 483[ ] (1954),

has made the ability of a district court to modify a

12

decree in response to changed circumstances all the

more important. Because such decrees often remain in

place for extended periods of time, the likelihood of

significant changes occurring during the life of the

decree is increased.

Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 380

(1991) (emphasis added). The Court thus instructed that “a

flexible approach is often essential to achieving the goals of

reform litigation.” Id. at 381. More recently the Court observed

that “injunctions issued . . . often remain in force for many

years, and the passage of time frequently brings about changed

circumstances — changes in the nature of the underlying

problem, changes in governing law or its interpretation by the

courts, and new policy insights — that warrant reexamination of

the original judgment.” Horne v. Flores, 129 S. Ct. 2579, 2593

(2009). Although the motion in Rufo was not filed until ten

years after the entry of the consent decree, the Court never

questioned the timeliness of the Rule 60(b) motion.4 The only

4

The procedural setting in Rufo is instructive. It concerned

a 1971 challenge to double bunking of pretrial detainees. An

injunction was entered barring double bunking as unconstitutional,

and no appeal was taken. 502 U.S. at 373. When months passed

without action by the city, the district court ordered the commissioner

to transfer the detainees to other institutions; the court of appeals

affirmed. Id. at 373 n.2. When the problem remained unresolved as

of 1977, the district court ordered the city to renovate another facility

as a substitute; the court of appeals affirmed and ordered the jail

closed on October 2, 1978, unless a plan was presented to create a

constitutionally adequate facility. Id. at 374. On remand, a consent

decree was entered based on construction of a new jail with only

single occupancy cells. Id. at 375–76. One week after the district

court approved the consent decree, id. at 376, the Supreme Court

decided Bell v. Wolfish, 441 U.S. 520, 541 (1979), rejecting a

constitutional due process challenge to double-bunking for pretrial

13

question was “whether a ‘significant change either in factual

conditions or in law’ rendered continued enforcement of the

judgment ‘detrimental to the public interest.’” Horne, 129 S. Ct.

at 2596–97 (quoting Rufo, 502 U.S. at 384).

Concluding that a motion to vacate the settlement order or

subsequent implementation orders, such as the Dental Order, are

subject to a strict time limit would run counter to the policies

underlying Rufo and its progeny. Rufo and Horne rejected a

“hardening” of the “traditional flexible standard” for

modification of injunctions and consent decrees. 502 U.S. at

379 (citing Carey, 706 F.2d at 968); 129 S. Ct. at 2594–95

(citing Rufo)). The circuits have likewise rejected “an unduly

strict” interpretation of the “reasonable time” requirement. See,

e.g., Associated Builders & Contractors v. Mich. Dep’t of Labor

and Economic Growth, 543 F.3d 275, 279 (6th Cir. 2008).

Prejudice to the opposing party, among others, is a relevant

factor.5 Moreover, the Seventh Circuit noted in

detainees. Multiple delays attended the construction of the new

facility, which was still ongoing ten years later in 1989 when the

Sheriff moved to amend the consent decree to allow double bunking

based on changed circumstances: the intervening decision in Bell v.

Wolfish and the greater-than-anticipated increase in the size of the

pretrial detainee population. Id. at 376. The motion was denied and

affirmed on appeal. The Supreme Court reversed, holding the lower

courts had not applied the correct standard: “The experience of the []

Courts of Appeals in implementing and modifying such [consent]

decrees has demonstrated that a flexible approach is often essential to

achieving the goals of reform litigation.” Id. at 381 (citing Carey, 706

F.2d at 967, 969).

5

See, e.g., Lemoge v. United States, 587 F.3d 1188, 1196–97

(9th Cir. 2009) (“What constitutes ‘reasonable time’ [to bring a Rule

60(b)(1) motion] depends upon the facts of each case, taking into

consideration the interest in finality, the reason for delay, the practical

14

Shakman v. City of Chicago 426 F.3d 925, 934 (7th Cir. 2005),

that a district court deciding whether to modify or vacate “[a]

ability of the litigant to learn earlier of the grounds relied upon, and

prejudice to the other parties.”) (quoting Ashford v. Steuart, 657 F.2d

1053, 1055 (9th Cir. 1981)); Thompson v. Bell, 580 F.3d 423, 443 (6th

Cir. 2009) (“Whether the timing of the motion [pursuant to Rule

60(b)(6)] is reasonable ‘ordinarily depends on the facts of a given case

including the length and circumstances of the delay, the prejudice to

the opposing party by reason of the delay, and the circumstances

compelling equitable relief.’”) (quoting Olle v. Henry & Wright Corp.,

910 F.2d 357, 365 (6th Cir. 1990)); Farm Credit Bank of Baltimore v.

Ferrera-Goitia, 316 F.3d 62, 66 (1st Cir. 2003) (“The circumstances

to be considered [in assessing the timeliness of a Rule 60(b)(4)

motion] include the length of the delay, the justification for it, and the

prejudice (if any) associated with the granting of relief.”); Travelers

Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410, 1412 (5th Cir.

1994) (holding that reasonable time determination in the context of a

Rule 60(b)(6) motion “depends upon the particular facts and

circumstances of the case” and citing Ashford, 657 F.2d at 1055, for

the proposition that prejudice of other parties must be considered);

Schultz v. Commerce First Fin., 24 F.3d 1023, 1025 (8th Cir. 1994)

(“We consider the movant’s reason for delay [in bringing motion filed

under both Rule 60(b)(5) and Rule 60(b)(6)] and the existence of any

prejudice to the opposing party when determining a ‘reasonable

time.’”); Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 610 (7th

Cir. 1986) (describing timeliness for motion brought pursuant to Rule

60(b)(1) and 60(b)(6)) (quoting Ashford, 657 F.2d at 1055); Matter of

Emergency Beacon Corp., 666 F.2d 754, 760 (2d Cir. 1981) (“What

qualifies as a reasonable time [for bringing a Rule 60(b)(6) motion],

however, will ordinarily depend largely on the facts of a given case,

including the length and circumstances of the delay and the possibility

of prejudice to the opposing party.”); Sec. Mut. Cas. Co. v. Century

Cas. Co., 621 F.2d 1062, 1067 (10th Cir. 1980) (noting that lack of

prejudice to non-moving party due to delay in bringing Rule 60(b)(1)

and 60(b)(6) motion constituted a factor in favor of finding that

motion was brought within a reasonable time).

15

Consent Decree must take into account the nature of that

litigation as well as the resulting prejudice, if any, to the present

elected officials and the public they represent.”

Notably, this court has not identified a standard for

assessing “reasonable time” under Rule 60(b). It has, however,

considered prejudice to the non-moving party. In Expeditions

Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d

808, 810 (D.C. Cir. 1974), for instance, the court stated that a

district court may vacate and reenter a judgment under Rule

60(b)(6) to allow a timely appeal “when neither party had actual

notice of the entry of judgment, when the winning party is not

prejudiced by the appeal, and when the losing party moves to

vacate the judgment within a reasonable time after he learns of

its entry. This holding was reaffirmed in In re Sealed Case

(Bowles), 624 F.3d 482, 487–88 (D.C. Cir. 2010). Likewise, in

Jackson v. Jackson, 276 F.2d 501, 504 (D.C. Cir. 1960) [Rule

60(b)(5)] the court concluded that where “[n]o intervening rights

of [the non-moving party] appear to have been prejudiced . . .

[t]he time accordingly was reasonable.” Accord Erick Rios

Bridoux v. E. Air Lines, Inc., 214 F.2d 207, 209 & n.3 (D.C. Cir.

1954).

A litigant’s diligence in pursuing review of a decision,

either through appeal or through Rule 60(b)(6) relief, is relevant

in assessing whether extraordinary circumstances are present.

See Gonzalez, 545 U.S. at 537. In a complex and long-running

institutional reform case such as this, however, it would be an

abuse of discretion to rule that a Rule 60(b)(6) motion is not

filed within a reasonable time without finding that the movant’s

delay has prejudiced the non-moving party. In the instant case,

there is not only no finding of prejudice, there has been no

allegation of prejudice by appellees either before this court or

the district court. Appellees’ argument in the district court was

limited to stating that the District government had “submitted no

16

reasons for the delay in bringing th[e] motion” and that a

“motion brought over 20 months after entry of the Dental Order

is clearly untimely.” Plaintiffs’ Opposition to Defendants’

Motion to Vacate the Court’s Order Granting Injunctive Relief

Dated October 18, 2004 at 14, Salazar v. District of Columbia,

No. 93-cv-452 (D.D.C. July 7, 2006), ECF No. 1171. Indeed, it

appears from a lengthy notation in the district court’s

memorandum opinion explaining its delay in ruling on the

motion to vacate that the delay was caused in considerable part

by cooperative efforts among the parties and the monitor to

resolve the difference between appellees and the District

government, with the strong encouragement of the court,

Salazar, 685 F. Supp. 2d at 74 n.2, without the necessity of a

motion to vacate or a court order. In the period between entry

of the Dental Order and the filing of the motion to vacate, the

district court held nine status conferences with all of the parties.

Also of note, and belying any notion that the parties had reached

a period of repose, during the same period appellees filed nine

and the District government filed two opposed motions.

Moreover, in ruling that the District government’s motion was

untimely, the district court made no mention of the monitor’s

recent filing of a report on January 27, 2006, four months prior

to the District government’s filing the motion to vacate, despite

the fact that the report offered “new policy insights,” Horne, 129

S. Ct. at 2593, from a third party regarding the achievability of

the dental utilization rates mandated by the Dental Order. Under

the circumstances, appellees cannot have relied to their

detriment on the repose afforded by the Dental Order, and an

apparent decision by the District government to allow that order

to stand. Because there is no argument of prejudice caused by

the timing of the District government’s moving to vacate the

Dental Order, the district court abused its discretion in ruling

that the motion was not brought within a reasonable time.

17

B.

The phrase “extraordinary circumstances” does not appear

in the text of Rule 60(b)(6), but the Supreme Court has added

this gloss to the rule. The Supreme Court’s earliest

interpretations of the 1948 amendment that created Rule

60(b)(6) came in a pair of cases: Klapprott v. United States, 335

U.S. 601 (1949), and Ackermann v. United States, 340 U.S. 193

(1950). Both concerned naturalized German immigrants whose

United States citizenship was withdrawn due to conduct

preceding or during World War II. In Klapprott, the petitioner

was served with a complaint for denaturalization and notice to

respond within sixty days, but was arrested on criminal charges

ten days later and a judgment by default was entered in the

denaturalization action. 335 U.S. at 602–03. In Ackermann,

three German immigrants represented by counsel answered a

complaint for denaturalization and one appealed the district

court judgment against all three and gained a reversal. 340 U.S.

at 195–96. Ackermann and his wife did not appeal, purportedly

on the ground that they lacked funds to appeal and on the advice

of an assistant commissioner at the Immigration and

Naturalization Department that because they were “stateless”

they would be released into the United States after the war. Id.

at 196.

In Klapprott, the Court noted that because the Rule 60(b)

motion was brought more than one year after the

denaturalization judgment, the petitioner needed to allege more

than mere “excusable neglect.” 335 U.S. at 613. The Court held

Rule 60(b)(6) to be applicable because the petitioner, at the time

of his denaturalization hearing, was being held in jail by the

United States, “his adversary in the denaturalization

proceedings.” Id.

The basis of his petition was not that he had neglected

to act in his own defense, but that in jail as he was,

18

weakened from illness, without a lawyer in the

denaturalization proceedings or funds to hire one,

disturbed and fully occupied in efforts to protect

himself against the gravest criminal charges, he was no

more able to defend himself in the [denaturalization

proceedings] than he would have been had he never

received notice of the charges.

Id. at 614.

By contrast, in Ackermann the Court found unavailing the

petitioner’s argument that the denaturalization judgment was

erroneous, that the petitioner was without any funds and under

threat of losing his home, and that a government officer had

apparently misled him. The focus of the Court in Ackermann

was the fact that petitioner had a “duty to take legal steps to

protect his interest in litigation” by appealing. 340 U.S. at 197.

The Court deemed the petitioner to have “made a considered

choice not to appeal” and he could not “be relieved of such a

choice because hindsight seems to indicate to him that his

decision not to appeal was probably wrong.” Id. at 198. The

Court distinguished Klapprott as being a case of “extraordinary

circumstances,” i.e., a case in which the petitioner “was

deprived of any reasonable opportunity to make a defense . . . by

officers of the very United States agency” that brought the

denaturalization proceeding. Id. at 199–200. The difference

between Klapprott and Ackermann, the Court concluded, was

“between no choice and choice” and “no chance for negligence

and inexcusable neglect.” Id. at 202. Thus, if the movant had

an opportunity for appeal and forwent that appeal, “[s]ubsection

(6) of Rule 60(b) has no application.” Id.

The Supreme Court has not retreated from this restrictive

understanding of Rule 60(b)(6). In Liljeberg, the Court treated

the phrase “extraordinary circumstances” as a requirement for

19

relief under Rule 60(b)(6), 486 U.S. at 863–64 & n.11, and its

requirements continue as part of Ackermann’s progeny. See, e.g.,

Gonzalez, 545 U.S. at 537; cf. Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993) .

This court, in turn, has emphasized that Rule 60(b)(6)

“‘should be only sparingly used’ and may not ‘be employed

simply to rescue a litigant from strategic choices that later turn out

to be improvident.’” Kramer v. Gates, 481 F.3d 788, 792 (D.C.

Cir. 2007) (quoting Good Luck Nursing Home, Inc. v. Harris, 636

F.2d 572, 577 (D.C. Cir. 1980)). Interpreting the line of cases

beginning with Klapprott and Ackermann, the court explained that

“a more compelling showing of inequity or hardship is necessary

to warrant relief under subsection (6) than under subsection (5);

otherwise, the ready availability of subsection (6) would make

meaningless the limitation of subsection (5) to judgments with

prospective application.” Twelve John Does, 841 F.2d at 1140.

Further, “a party who has not pursued an appeal may obtain relief

under Rule 60(b)(6) only if there are . . . ‘circumstances . . . so

extraordinary as to bring [the movant] within Klapprott or Rule

60(b)(6),’ i.e., circumstances that essentially made the decision

not to appeal an involuntary one.” Id. at 1141 (quoting

Ackermann, 340 U.S. at 202) (internal citation omitted)). The

court has understood “Ackermann [to] prohibit[] a court from

utilizing Rule 60(b)(6) to relieve a party from a voluntary

dismissal based only on financial hardship,” Randall v. Merrill

Lynch, 820 F.2d 1317, 1321 (D.C. Cir. 1987), although the court

has allowed relief when a litigant suffered from a disabling

illness, where participation in litigation would cause greater

disability, and where the illness had depleted the litigant’s

financial resources, because “this combination of health and

financial considerations was sufficient to permit relief under Rule

60(b)(6),” id. (emphasis in original). It has also held that there

were “extraordinary circumstances” warranting Rule 60(b)(6)

relief where an attorney was “grossly negligent,” a circumstance

20

not at issue here. L.P. Steuart, Inc. v. Matthews, 329 F.2d 234,

235–36 (D.C. Cir. 1964). Accord Community Dental Servs. v.

Tani, 282 F.3d 1164, 1168–69 (9th Cir. 2002); Shepard Claims

Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 195 (6th

Cir. 1986); Boughner v. Sec’y of Health, Educ. & Welfare, 572

F.2d 976, 978 (3d Cir. 1978).

The District government relies on Good Luck Nursing Home,

636 F.2d at 574. In that case, a nursing home sought

reimbursement from the U.S. Department of Health, Education,

and Welfare for legal and account expenses in connection with its

administration of the Medicare program. The district court

granted summary judgment to the nursing home but reconsidered

three months later when the government revealed, by motion filed

pursuant to Rule 60(b)(6), that the expenses in question were

incurred in defending a civil action against the nursing home in

which Medicare fraud and overpayment had been alleged. Id.

This court affirmed:

When a party timely presents a previously undisclosed

fact so central to the litigation that it shows the initial

judgment to have been manifestly unjust,

reconsideration under [R]ule 60(b)(6) is proper even

though the original failure to present that information

was inexcusable.

Id. (internal citations omitted). Applying this rule in Computer

Professionals for Social Responsibility v. U.S. Secret Service, 72

F.3d 897 (D.C. Cir. 1996), the court held that Rule 60(b)(6) relief

was warranted where the government presented new information

on the confidentiality of documents that the district court had

originally ordered released by the Secret Service under the

Freedom of Information Act. The government provided this

information within eighteen days of the order granting access to

requested documents. Relief was warranted in view of the

21

interests of the Secret Service and the protected interest in

confidentiality that belonged to a third party source and was

“central to the litigation.” Id. at 903.

It is unnecessary to decide whether the rule of Good Luck

Nursing Home and Computer Professionals survives the Supreme

Court’s decision in Gonzalez emphasizing that a “lack of

diligence” effectively precludes a finding of “extraordinary

circumstance.” 545 U.S. at 537. Regardless of the court’s

holdings in Good Luck Nursing Home and Computer

Professionals, the Supreme Court’s holdings in Ackermann and

Gonzalez that a lack of diligence will preclude a finding of

extraordinary circumstances control the outcome of this appeal.

Rule 60(b)(6) relief is not a “substitute for appeal,” Polites v.

United States, 364 U.S. 426, 432 (1960); Twelve John Does, 841

F.2d at 1141; Gilmore v. Hinman, 191 F.2d 652, 653 (D.C. Cir.

1951). The District government made a “considered choice,”

Ackermann, 340 U.S. at 198, by noting an appeal and then moving

to dismiss its appeal.

Furthermore, neither Good Luck Nursing Home nor

Computer Professionals involved judgments providing for

prospective relief. One sought money for services rendered; the

other sought the release of documents. By contrast, the District

government sought vacatur of the Dental Order arising under a

Settlement Order having prospective application. Where the

claim is that the application of an order is prospectively

inequitable, Rule 60(b)(5) is available. See Agostini v. Felton,

521 U.S. 203, 239 (1997); Hall v. CIA, 437 F.3d 94, 101 (D.C.

Cir. 2006); Twelve John Does, 841 F.2d at 1138–40; see also

Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18

How.) 421 (1856).6 It is where a judgment has no prospective

6

To the extent the District government contends that certain

aspects of the Dental Order are impossible or impractical to achieve

22

application and the neglect is inexcusable that Rule 60(b)(6)

provides the only avenue for relief. Agostini, 521 U.S. at 239.

Accordingly, we affirm the order denying the District

government’s motion to vacate the Dental Order pursuant to Rule

60(b)(6) in the absence of the requisite extraordinary

circumstances. The District government is not without remedies,

however. Paragraph 71 of the Settlement Order provides for

modification “at any time for any reason.” The District

government’s legal argument may present a jurisdictional

argument cognizable under Rule 60(b)(4), while its impossibility

argument may be raised under Rule 60(b)(5).

and it is inequitable for the Dental Order to have any prospective

application, then its motion may be brought under Rule 60(b)(5),

which “permits a party to obtain relief from a judgment or order if,

among other things, ‘applying [the judgment or order] prospectively

is no longer equitable.’” Horne, 129 S. Ct. at 2593.