Petition for Writ of Certiorari — United States ex rel. Garibaldi v. Orleans Parish School Board

Supreme Court, U.6.

J FILED

041415 APR 15 2009

No. OFFI@E OF THE CLERK

In the Supreme Court of the Anited States

UNITED STATES OF AMERICA EX REL.

WILLIAM GARIBALDI AND CARLOS SAMUEL

Petitioners

Vv.

ORLEANS PARISH SCHOOL BOARD

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ERIC GRANT

VICTORIA LENNOX BARTELS (Counsel of Record)

WILLIAM F.. WESSEL ATTORNEY AT LAW

WESSEL & ASSOCIATES Suite 100

127 Camp Street 8001 Folsom Boulevard

New Orleans, LA 70130 Sacramento, CA 95826

(504) 568-1112 (916) 388-0833

Counsel for Petitioners

CMAP NPE: NI

i

QUESTION PRESENTED

Federal Rule of Civil Procedure 60(b)(6) authorizes a

district court to grant relief from a final judgment in “extra-

ordinary circumstances,” the determination of which is left

to that court’s sound discretion. The question presented is

whether a district court may never exercise its discretion to

grant relief under Rule 60(b)(6) on the basis of a change in

the controlling decisional law—regardless of the facts and

circumstances that accompany such change.

ij

TABLE OF CONTENTS

Page

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PROCEDURAL RULE INVOLVED ................44. 1

STATEMENT OF THE CASE ...........ccceeccccees 2

A. Beem Ge akc hbk ween eeeeeenens 2

BD. ‘Fie RRS ons ks 65 wanes sueeeenseavens 4

C. Te We: oi ccc cla cena ase 5

REASONS FOR GRANTING THE PETITION .......... 8

I. In Essentially Ruling that Rule 60(b)(6) Relief

Can Never Rest on a Change in the Decisional

Law, the Fifth Circuit’s Decision Is in Conflict

with the Decisions of Other Courts of Appeals ..... 9

A. The Eleventh Circuit’s Decision

Ww Ee | PTET Ce PET TTT TTT eT CreTy 9

B. The Tenth Circuit’s Decision in

Plates 0. Com Ge kok. ccc a iiae view beeen 14

II. The Authority of the District Courts to Grant

Rule 60(b)(6) Relief Based on a Change in the

Decisional Law Is a Recurring Question as to

Which the Lower Courts Exhibit Confusion ...... 16

CONCEATEIONN onckccadnweds «cease eeeeneeneeses 20

APPENDIX

A. Court of Appeals Opinion (Jan. 17, 2005) ..... la

B. District Court Opinion (Sept. 18, 2003) ..... lla

C. Court of Appeals Opinion (Mar. 28, 2001) ... 25a

D. District Court Opinion (Apr. 27, 1999) ...... 42a

Re Le ee ee

iii

TABLE OF AUTHORITIES

Page

Cases

Ackermann v. United States,

di BL! ee 6, 17

Adams v. Merrill Lynch Pierce Fenner & Smith,

888 F.2d 696 (10th Cir. 1989) .................. 16

Agostini v. Felton,

ee 8,17

Bailey v. Ryan Stevedoring Co.,

894 F.2d 157 (5th Cir.),

cert. denied, 498 U.S. 829 (1990) ................. 9

Baldwin v. Alabama,

472 U.S. 372 (1985) .......... Heese eeserese 10-13

Batts v. Tow-Motor Forklift Co.,

66 F.3d 743 (5th Cir. 1995),

cert. denied, 517 U.S. 1221 (1996) .............. 7-9

Browder v. Director, Department of Corrections,

ek rr 6,18

Cincinnati Insurance Co. v.

Flanders Electric Motor Services,

131 F.3d 625 (7th Cir. 1997) ................ 17-18

Cook County v. United States ex rel. Chandler,

OOS UB. TID (BOOB)... oc vo vcccccccccces, 4-6, 11-12

DeWeerth v. Baldinger,

38 F.3d 1266 (2d Cir. 1994) .................... 18

Dowell v. State Farm Fire &

Casualty Automobile Insurance Co. :

993 F.2d 46 (4th Cir. 1998) .................... 17

iv

TABLE OF AUTHORITIES—Continued

Page

Ex parte Baldwin,

456 So. 2d 129 (Ala. 1984),

aff'd, 472 U.S. 372 (1985) .. 1.2... cece eee ee eee 10

GE Co. v. Joiner,

4 Ss Ar rr ery 9

Gondeck v. Pan American World Airways, Inc.,

i ee daeee eas 15

Hess v. Cockrell,

, es p 7 Le = re rare 9

Hudgens v. Cook Industries, Inc.,

ee ee on a aeeedaeeae an 14

Kansas Public Employees Retirement

System v. Reimer & Koger Associates,

194 F.3d 922 (8th Cir. 1999),

cert. denied, 529 U.S. 1004 (2000) ............... 18

Klapprott v. United States,

ee ean ae aes 7

Liljeberg v. Health Services Acquisition Corp.,

Pe i os a ks pa Cunan sadeekeaaan 6

Marion Machine, Foundry & Supply Co. v.

Duncan, 101 P.2d 813 (Okla. 1940) .............. 14

Metz v. Merrill Lynch, Pierce, Fenner & Smith,

Inc., 39 F.3d 1482 (10th Cir. 1994) .............. 16

Norgaard v. DePuy Orthopaedics,

pe BAB Re Fs OR. | Eh errrerereare eae 19

Picco v. Global Marine Drilling Co.,

900 F.2d 846 (5th Cir. 1990) .. eee escsssscnacsces g

Pichardo v. Ashcroft,

374 F.3d 46 (2d Cir. 2004) .................. 17-18

Vv

TABLE OF AUTHORITIES—Continued

Page

Reform Party v. Allegheny County

Department of Elections,

174 F.3d 305 (3d Cir. 1999) .................... 17

Pierce v. Cook & Co.,

518 F.2d 720 (10th Cir. 1975),

cert. denied, 423 U.S. 1079 (1976) ....... 14-16, 18-19

Pierce v. Cook & Co.,

437 F.2d 1119 (10th Cir. 1970) ................. 14

Plaut v. Spendthrift Farm, Inc.,

POGUE BOANIOUE, 66 ik ok ee ee 19

Polites v. United States,

Sie ST RD ake us fogs ee 19

Ritter v. Smith, 811 F.2d 1398 (11th Cir.),

cert. denied, 483 U.S. 1010 (1987) ............. 8-16

Ritter v. Smith,

726 F.2d 1505 (11th Cir.),

cert. denied, 469 U.S. 869 (1984) .............. 9-10

Smith v. Robinson,

Sap VSD oi ssc cc eee cic oe 19

Standard Oil Co. v. United States,

GP AEs CE go boo ok hk 17-18

Tonya K. v. Board of Education,

847 F.2d 1243 (7th Cir. 1988) .................. 19

United States v. Ohio Power Co.,

Se SE WUE once Satie dee 15

United States ex rel. Chandler v. Cook County,

277 F.3d 969 (7th Cir. 2002),

“74, CUS. NS GMOS «oo ccc 4

vi

TABLE OF AUTHORITIES—Continued

Page

United States ex rel. Dunleavy

v. County of Delaware,

279 F.3d 219 (3d Cir. 2002),

vacated, 538 U.S. 918 (2003) ............. 4-5, 11-12

Vermont Agency of Natural Resources

v. United States ex rel. Stevens,

GED Uae WE GUEE 606 ecendcccceccéneneanee< 3,5

Woods v. Kenan (In re Woods),

173 F.3d 770 (10th Cir.),

cert. denied, 528 U.S. 878 (1999) ............005. 16

Statutes and Court Rules

SO UBO. § IBGE 6 ccccecsstadactstevshsseiescuen 1

S4 WEG. GOTH so0ccncceescessebeseuunsaes 2, 4, 13

COTO noc cccéseccacdécusdssueieeneettae 1-3

i. & Ss BR Pre ee 3

GD ccccccvesccectéaccedéseeceeseenseesues passim

Other Authority

12 Moore’s Federal Practice § 60.48

(BG od. BOGE) 2 ccccccccssccccssccccseccecscas 17

1

PETITION FOR WRIT OF CERTIORARI

William Garibaldi and Carlos Samuel, for themselves

and also for the United States Government, see 31 U.S.C.

§ 3730(b)(1), respectfully petition for a writ of certicrari to

review the judgment of the United States Court of Appeals

for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth Cir-

cuit (App. la-10a) is reported at 397 F.3d 334; a prior opin-

ion of that court (App. 25a-41a) is reported at 244 F.3d 486.

The opinion of the District Court for the Eastern District of

Louisiana (App. 11a-24a) is unreported; a prior opinion of

that court (App. 42a-83a) is reported at 46 F. Supp. 2d 546.

JURISDICTION

The judgment of the court of appeals was entered on

January 17, 2005. This Court has jurisdiction pursuant to

28 U.S.C. § 1254(1).

PROCEDURAL RULE INVOLVED

Federal Rule of Civil Procedure 60(b) provides in per-

tinent part:

On motion and upon such terms as are just,

the court may relieve a party or a party’s legal

representative from a final judgment, order, or

proceeding for the following reasons: .. . (6) any

other reason justifying relief from the operation

of the judgment. The motion shall be made with-

in a reasonable time... .

a

vv

2

STATEMENT OF THE CASE

As found by the jury and as confirmed by the district

court in post-verdict proceedings, respondent Orleans Par-

ish School Board (“the Board”) “submitted more than 1500 |

false claims to the federal government over the course of 11

years.” App. 12a. Petitioners William Garibaldi and Carlos

Samuel (“the Relators”) were employed in the Board’s Audit

Department; they discovered the fraud and reported it to

their boss, the Superintendent of the Board. See App. 26a-

27a. For their efforts, Samuel was fired and Garibaldi was

suspended pending a termination hearing. See App. 28a.

A. Round One.

The Relators instituted a “qui tam action” against the

Board in the United States District Court for the Eastern

District of Louisiana. Pursuant to 31 U.S.C. § 3730(b)(1),

the Relators asserted violations of the False Claims Act “in

the name of the Government”; pursuant to § 3730(h), they

also asserted that the Board had retaliated against them in

violation of the Act’s protections for “whistleblowers.” See

App. 28a. Following nine days of testimony, the jury found

that the Board had submitted 1,570 false claims and had

illegally retaliated against the Relators for bringing those

claims to light; the jury further found that the Government

had suffered actual financial damages of $7.6 million as a

result of the false claims, that-the Relators had each sus-

tained pain and suffering in the modest amount of $65,000

as a result of the illegal retaliation, and that Samuel had

lost an additional $103,000 in wages for that same reason.

See id. After trebling the Government’s actual damages (to

$22.8 million) and adding a penalty of $5,000 for each false

claim ($7.85 million more) pursuant to 31 U.S.C. § 3729(a),

the district court entered judgment against the Board for

nearly $31 million. See App. 29a, 43a.

That amount was substantially reduced in post-verdict

proceedings. In a lengthy ruling, the district court rejected

most of the parties’ attacks on the judgment, including the

ee

3

Board’s motion for judgment as a matter of law pursuant to

Federal Rule 50(b). See App. 44a-65a. The court did, how-

ever, reduce the Government’s actual damages by slightly

more than $300,000; more significantly, the court exercised

its discretion under Fifth Circuit precedent to eliminate al-

most entirely the civil penalty assessed against the Board,

reducing it by more than 98% from $7.85 million to a mere

$100,000. See App. 29a-30a. Having reduced the Govern-

ment’s recovery from nearly $31 million to just under $23

million, the district court reaffirmed its decision to award

the Relators the very minimum percentage of the recovery

to which they were entitled under 31 U.S.C. § 3730(d)(2),

i.e., 25%. See App. 70a-71a.

The Board satisfied the portion of the judgment attrib-

utable to the Relators’ claims of retaliation, but all parties

appealed with respect to the judgment on the false claims.

See App. 29a n.1, 30a. The Court of Appeals for the Fifth

Circuit pretermitted all other issues in order to resolve “the

issue we find dispositive, namely whether a local govern-

ment such as the School Board may be held liable under the

False Claims Act.” App. 30a. Observing that those “district

courts that have considered the issue are divided” and that

the “issue is one of first impression for this court, and for

the courts of appeal[s] generally,” App. 31a, the Fifth Cir-

cuit answered the question in the negative.

The court of appeals relied largely on this Court’s then-

recent decision in Vermont Agency of Natural Resources v.

United States ex rel. Stevens, 529 U.S. 765, 785 (2000), said

to be “conclusive” on the point that the “treble damages im-

posed by the False Claims Act are punitive damages.” App.

34a n.5 (emphasis added). In light of the supposedly “well-

settled presumption that governments, including local gov-

ernments, are not subject to punitive damages,” App. 34a,

the court of appeals concluded that the “punitive damages

regime of the False Claims Act shows a congressional intent

that the False Claims Act should not be applied to local gov-

ernments,” App. 41a. Accordingly, the Fifth Circuit vacated

4

the $23 million judgment in favor of the Government and

rendered judgment on the false claims in favor of the Board.

See App. 41a.

The Relators then sought reliefin this Court. As noted

above, however, the Fifth Circuit was the very first court of

appeals to consider whether local governments are subject

to qui tam actions under the False Claims Act. Faced with

a question of unmistakably first impression, this Court not

surprisingly denied the Relators’ petition for certiorari. See

534 U.S. 1078, reh’g denied, 534 U.S. 1172 (2002) (docketed

as No. 01-510). With that denial, the Fifth Circuit’s judg-

ment on the false claims in favor of the Board became final.

B. The Interlude.

Not two months after the Court finally disposed of the

Relators’ petition, it received the petition of Cook County,

Illinois, which sought review of the Seventh Circuit’s deci-

sion finding that local governments are indeed amenable to

qui tam actions. See United States ex rel. Chandler v. Cook

County, 277 F.3d 969, 980 n.10 (7th Cir. 2002) (noting that

this holding “creates an intercircuit conflict” with the Fifth

Circuit’s ruling in Relators’ case) (docketed as No. 01-1572).

Barely a month after receiving Cook County’s petition, the

Court received still another petition presenting the same

question, this one from the Third Circuit. See United States

ex rel. Dunleavy v. County of Delaware, 279 F.3d 219, 225

(3d Cir. 2002) (holding, in accord with the Fifth Circuit in

Relators’ case, that “Congress did not intend to subject local

governments to punitive damages under the [False Claims

Act]”) (docketed as No. 01-1711).

The Court soon granted Cook County’s petition. In a

unanimous opinion that cited the conflict between the deci-

sion under review and the decisions of the Third and Fifth

Circuits in Dunleavy and in the Relators’ case, respectively,

this Court held that the “term ‘person’ in [the False Claims

Act, 31 U.S.C. § 3729] included local governments in 1863

and nothing in the 1986 amendments redefined it.” Cook

5

County v. United States ex rel. Chandler, 538 U.S. 119, 133

(2003); see also id. at 125 & n.6 (describing the circuit con-

flict). Contra the Fifth Circuit’s reasoning in the Relators’

case, see App. 34a-35a, the Court explained that “although

Stevens recognized that the [Act’s] treble damages remedy

is still ‘punitive’ in that recovery will exceed full compensa-

tion in a good many cases, the force of this punitive nature

in arguing against municipal liability is not as robust as if

it were a pure penalty in all cases,” for “[t]reble damages

certainly does not equate with classic punitive damages.”

538 U.S. at 131-32. The Court observed that the question

in municipal defendant cases “is whether the local taxpayer

should make up for an undeserved benefit, or the federal

taxpayer be permanently out of pocket”—a question to be

answered in any given case “by a combination of the [trial]

judge’s discretion and the Government’s power to intervene

and dismiss or settle an action.” Id. at 132.

After issuing this decision, the Court granted the pe-

tition of the Dunleavy relators, vacated the Third Circuit’s

erroneous decision in favor of Delaware County, Pennsyl-

vania, and remanded the case for reconsideration in light of

Cook County. See 538 U.S. 918 (2003).

C. Round Two.

The unanimous decision in Cook County was handed

down on March 10, 2003. On May 12, 2003, the Relators re-

turned to the district court and sought relief from the Fifth

Circuit’s final judgment in favor of the Board in Round One.

See App. 4a. The substantive basis for such relief was, of

course, this Court’s ruling in Cook County that local govern-

ments like the Board are indeed subject to qui tam actions

under the False Claims Act. The procedural basis for the

relief was Federal Rule of Civil Procedure 60(b), which pro-

vides that, “[o]n motion and upon such terms as are just,

the court may relieve a party .. . from a final judgment” for

specified reasons, the sixth and final one being “any other

reason justifying relief from the operation of the judgment.”

6

As construed by this Court, Rule 60(b)(6) provides the

district courts “with authority adequate to enable them to

vacate judgments whenever such action is appropriate to

accomplish justice”, however, the rule “should only be ap-

plied in ‘extraordinary circumstances.” Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847, 864 (1988) (quot-

ing Ackermann v. United States, 340 U.S. 193, 199 (1950)).

Like all decisions to grant or deny relief under Rule 60(b),

the determination whether extraordinary circumstances are

present is committed to the district court’s sound discretion,

subject to review for abuse of that discretion. See Browder

uv. Director, Department of Corrections, 434 U.S. 257, 263 &

n.7 (1978).

The district court here exercised its discretion in favor

of the Relators, expressly finding that “because of the extra-

ordinary circumstances surrounding this case, the motion

[for relief from the judgment] must be granted.” App. 11a.

The court acknowledged that “a simple ‘change in decisional

law’ is not enough to trigger Rule 60(b)(6),” App. 23a, but it

found that the present case involved more that a “simple”

change, for essentially four reasons:

(1) “But for [the Relators’ case], there would

not have been the two to one split upon which the

Supreme Court ultimately based its grant of [cer-

tiorari in Cook County].” App. 23a.

(2) Cook County “found the very basis for the

Fifth Circuit’s decision to be devoid of merit.” Id.

(3) That the Relators’ case, the Third Circuit

case, and the Seventh Circuit case “were all under

consideration at substantially the same time and

played a role in the Supreme Court’s decision”—

but of all qui tam plaintiffs in the three cases, the

Relators alone got no benefit from that decision—

“presents proof that enforcement of the judgment

would work an injustice,” indeed, a “substantial”

injustice. Id.

7

(4) “(I]t would be simple serendipity that de-

termined that the federal taxpayer was to be per-

manently out of pocket the funds at issue herein.

This course of action cannot be countenanced in

the meting out of justice.” App. 24a.’

Exercising its discretion in light of the foregoing, the district

court found that “extraordinary circumstances exist and the

[Rule 60(b)(6)] motion must be granted.” Id. Accordingly,

the court reinstated its prior amended judgment in favor of

the Government and the Relators in respect to the Board’s

1,570 false claims. See id.

On appeal, the Fifth Circuit reversed. The court did

acknowledge that relief under Rule 60(b)(6) is appropriate

in an “extraordinary situation” or “if extraordinary circum-

stances are present.” App. 5a (quoting, respectively, Klap-

prott v. United States, 335 U.S. 601, 613 (1949), and Batts v.

Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995),

cert. denied, 517 U.S. 1221 (1996)). What the court did not

acknowledge, however, was the district court’s discretion in

general or its weighing of the equities in this case in partic-

ular. Instead, the Fifth Circuit simply performed its own,

independent “examination of the details of the arguments

for reopening the judgment.” App. 7a. That examination

yielded the conclusion that the “present case is not atypi-

cal of the many instances in which the Supreme Court has

granted certiorari and rendered a decision resolving a cir-

cuit split.” App. 6a. In other words, “we do not think the

present case has any features that cause it to be exceptional

to such a marked extent from other cases involving resolu-

tion of circuit conflicts.” Id.

’ The district court could have advanced two more reasons: one,

the case had already been fully tried to verdict, such that grant-

ing the Relators’ motion did not necessitate a long-delayed retrial,

with the attendant dangers of faded memories or otherwise stale

evidence; and two, the original judgment in favor of the Board on

the false claims was “unexecuted,” in that no transfer of money or

property had taken place as a result of that judgment.

8

In reaching its own, independent conclusion that the

present case was neither atypical nor exceptional (and thus

presented no “extraordinary circumstances”), the Fifth Cir-

cuit did two things of note. First, the court repudiated as

“dicta unnecessary to [its] holding” the statement in Batts

that “relief from judgment may be appropriate where the

subsequent decision is closely related to the judgment from

which relief is sought, ‘such as where the Supreme Court

resolves a conflict between another circuit ruling and that

case.” App. 7a (quoting Batts, 66 F.3d at 748 n.6).

Second, the Fifth Circuit confronted the Eleventh Cir-

cuit’s decision in Ritter v. Smith, 811 F.2d 1398 (11th Cir.),

cert. denied, 483 U.S. 1010 (1987). See App. 7a-9a. Using

language that courts employ to denigrate a decision without

expressly criticizing it—“even if we were to assume or agree

[that Ritter] presented ‘extraordinary circumstances’ under

Rule 60(b)(6)”—the Fifth Circuit found Ritter “clearly dis-

tinguishable,” App. 7a (emphasis added), even as the court

conceded that “[n]o two cases are truly identical,” App. 10a.

Accordingly, the court of appeals reversed the district

court’s grant of relief under Rule 60(b)(6) and reinstated the

erroneous-but-final judgment that had resulted from Round

One. See App. 10a.

REASONS FOR GRANTING THE PETITION

Balancing the competing considerations of finality and

consistency, this Court has opined that “[iJntervening de-

velopments in the law by themselves rarely constitute the

extraordinary circumstances required for relief under Rule

60(b)(6). Agostini v. Felton, 521 U.S. 203, 239 (1997). This

case presents the question whether, in saying by themselves

and rarely, the Court actually meant never. The Fifth Cir-

cuit so ruled in the present case, and thereby issued a deci-

sion in conflict with the decisions of the Tenth and Eleventh

Circuits on this important and recurring matter.

9

I. In Essentially Ruling that Rule 60(b)(6) Relief

Can Never Rest on a Change in the Decisional

Law, the Fifth Circuit’s Decision Is in Conflict

with the Decisions of Other Courts of Appeals.

Although the decision below does not purport to cate-

gorically prohibit relief under Rule 60(b)(6) premised on a

change in the controlling decisional law, that is its essence.

Despite the applicability of the abuse-of-discretion standard

—and “the deference [to trial courts] that is the hallmark of

abuse of discretion review,” GE Co. v. Joiner, 522 U.S. 136,

148 (1997)—the Fifth Circuit overturned the district court’s

exercise of discretion to grant Rule 60(b)(6) relief. Before

the decision below, the Fifth Circuit did the same thing in

Batts, 66 F.3d at 751. Before Batts, the Fifth Circuit did the

same thing in Hess v. Cockrell, 281 F.3d 212 (5th Cir. 2002).

Before Hess, the Fifth Circuit did the same thing in Picco

v. Global Marine Drilling Co., 900 F.2d 846, 851 (5th Cir.

1990), and in Bailey v. Ryan Stevedoring Co., 894 F.2d 157,

160 (5th Cir.), cert. denied, 498 U.S. 829 (1990). And so on.

To be sure, Batts does contain a footnote in which the

Fifth Circuit—again, in the course of overturning a district

court’s grant of relief under Rule 60(b)(6)—opined: “We do

not hold that a change in decisional law can never be an ex-

traordinary circumstance.” 66 F.3d at 748 n.6. But it was

this very footnote, and particularly its reliance on the Elev-

enth Circuit’s decision in Ritter v. Smith, that the decision

below expressly repudiated as “unnecessary” “dicta.” App.

7a; see also id. n.22 (citing Batts, 66 F.3d at 748 n.6). Itis

to the Ritter decision that we turn first.

A. The Eleventh Circuit’s Decision in

Ritter v. Smith.

In the first Ritter v. Smith, 726 F.2d 1505, 1517 (11th

Cir. 1984), the Eleventh Circuit held that Alabama’s capital

sentencing scheme was “facially unconstitutional” because

of a peculiar provision involving the pronouncement by the

jury of a death “sentence” at the guilt phase. The court of

10

appeals ordered the district court to grant a writ of habeas

corpus unless the petitioner Ritter was resentenced in the

absence of this jury “sentence.” See id. at 1519. This Court

denied the state’s petition for certiorari in due course, 469

U.S. 869 (1984), after which the court of appeals issued its

mandate, and the district court entered judgment thereon.

See Ritter, 811 F.2d at 1400. Thereafter, the Court granted

certiorari in Baldwin v. Alabama, 469 U.S. 1085 (1984), to

review the same sentencing scheme. In its decision on the

merits, the Court expressly cited the conflict between Ritter

v. Smith and the Alabama Supreme Court’s decision in Ex

parte Baldwin, 456 So. 2d 129 (Ala. 1984). See Baldwin v.

Alabama, 472 U.S. 372, 374 (1985). The Court resolved the

conflict in the state’s favor, ruling that the jury “sentence”

was “peculiar” but not “unconstitutional,” and so affirmed

Baldwin’s capital sentence. Jd. at 389.

In the second Ritter v. Smith, Alabama sought relief

from the earlier final judgment in favor of Ritter premised

on the change in decisional law wrought by Baldwin. The

district court granted such relief under Rule 60(b)(6), and

the Eleventh Circuit affirmed. The court concluded that the

relevant decisions “plainly allow Rule 60(b)(6) relief where

there has been a clear-cut change in the law”; however, “it

is also clear that a change in the law will not always provide

the truly extraordinary circumstances necessary to reopen

acase.” 811 F.2d at 1401. Thus, although “something more

than a ‘mere’ change in the law is necessary to provide the

grounds for Rule 60(b)(6) relief,” several additional factors

persuaded the court that “the circumstances are sufficiently

extraordinary to warrant relief under Rule 60(b)(6).” Id.

The three principal factors identified by the Eleventh

Circuit are equally present here:

(1) “the previous, erroneous judgment of this

court had not been executed,” id.; cf. supra note 1

(noting that the same holds true with respect to

the previous, erroneous judgment of the Fifth Cir-

cuit in the present case);

11

(2) “there was only minimal delay between

the finality of the judgment [Dec. 3, 1984] and the

motion for Rule 60(b)(6) relief [Sept. 9, 1985],”

Ritter, 811 F.2d at 1402; cf. App. 3a-4a (finality

on Feb. 25, 2002; motion on May 12, 2003); and

(3) “the close relationship between the two

cases at issue, Baldwin and Ritter,” namely, that

this Court “granted certiorari in Baldwin for the

express purpose of resolving the dispute between

these two cases,” Ritter, 811 F.2d at 1402; cf. Cook

County, 538 U.S. at 125 & n.6 (noting that certi-

orari was granted to resolve the conflict between

the decision below and the decisions of the Third

and Fifth Circuits in Dunleavy and the Relators’

case, respectively).?

Based on these considerations, the Eleventh Circuit upheld

the district court’s “finding that the particular facts of this

case constitute such extraordinary circumstances.” Ritter,

811 F.2d at 1404.

In the decision below, of course, the Fifth Circuit both

sniffed at Ritter v. Smith—refusing explicitly to “assume or

agree” that it was correctly decided—and found it “clearly

distinguishable.” App. 7a. Quite frankly, the distinctions

drawn by the Fifth Circuit are so strained as to make out-

right disagreement with the Eleventh Circuit the far more

cogent explanation for the result below.

First, the Fifth Circuit pointed out that “considerations

of comity for state laws and state judicial decisions are not

present in this federal question case.” App. 8a. That is cor-

* The Eleventh Circuit also cited "considerations of comity,” i.e.,

the “state has a strong interest in assuring that constitutionally

valid state court judgments are not set aside and can be carried

out without undue delay.” Ritter, 811 F.2d at 1403. As explained

in the text below, however, the court significantly (if not wholly)

retreated from these considerations later in its opinion.

12

rect as a technical matter, but Ritter made clear that such

considerations were the least important of all. See 811 F.2d

at 1403 (listing comity as the fourth of four considerations).

More importantly, Ritter significantly (if not wholly) down-

played comity later in the opinion: “Were the roles in this

case reversed, it is clear that Ritter could have received the

benefit of an intervening favorable Supreme Court ruling

inconsistent with a decision of our court.” Id. at 1404. Ifa

habeas petitioner who sought to upset the finality of a state-

court judgment would receive the same benefit as the state

that sought to preserve that judgment, then “it is clear” (as

the Eleventh Circuit itself put it) that comity adds little, if

anything, to the calculus. Indeed, the actual consideration

would appear to be not comity, but consistency.

Second, the Fifth Circuit asserted that because of the

Third Circuit’s decision in Dunleavy, its erroneous decision

in Round One “was not essential to the circuit split.” App.

8a. But some sort of metaphysical essentiality was not the

point made by Ritter; rather, the point was simply the “close

relationship” between the erroneous prior decision and-the

decision by which this Court revealed the error, such close-

ness being manifested by an expressly recognized conflict.

811 F.2d at 1403. As noted above, such express recognition

by this Court was functionally identical in both situations.

Compare Baldwin, 472 U.S. at 374, with Cook County, 538

US. at 125 & n.6.

Third, the Fifth Circuit asserted that its erroneous de-

cision in Round One was “not apt to have prospective effects

analogous to those of an executory constitutional ruling af-

fecting a state’s capital sentencing procedures” like the first

Ritter v. Smith. App. 8a. But the minor premise that the

first Ritter had any lingering “prospective effects” is false.

By the time the Eleventh Circuit heard the appeal from the

grant of Rule 60(b)(6) relief, its prior decision had been de-

clared erroneous by this Court in Baldwin and accordingly

had “effects” in Ritter’s case alone. Yet that singularity and

lack of prospectivity did not stop the Eleventh Circuit from

13

agreeing with the district court that the circumstances were

“sufficiently extraordinary to justify disturbing the finality

of the judgment.” 811 F.2d at 1402.

Fourth, the Fifth Circuit asserted that its erroneous

decision in Round One was “more analogous to a fully ex-

ecuted judgment than to Ritter’s ‘unexecuted’ judgment.”

App. 8a. This assertion is baffling. The court identified no

money or other property that had changed hands as a result

of the Round One judgment, nor did the court point to any

other affected interest (like title to land) that the concept of

finality is especially concerned to protect. In essence, that

judgment was as much “unexecuted” as the judgment in the

first Ritter v. Smith. Indeed, as in Ritter, relief in this case

can be afforded without additional proceedings in the dis-

trict court, given that the matter was fully tried to verdict

(and underwent considerable post-verdict proceedings) in

Round One.°

Finally, the Fifth Circuit observed that this case “does

not arise from the same factual transaction as Chandler’s

FCA suit against Cook County, Illinois.” App. 9a. This ob-

servation is certainly true, but it hardly provides a basis for

distinguishing Ritter: Ritter’s case did not arise from the

same “transaction” as Baldwin’s. Compare Ritter, 811 F.2d

at 1399 (murder of Edward Nassar) with Baldwin, 472 U.S.

at 374 (murder of Naomi Rolon). Rather, the two cases in-

volved the constitutionality of the same capital sentencing

scheme, just as the present case and Cook County involve

the proper interpretation of the same provision of the False

Claims Act, 31 U.S.C. § 3729(a).

* The Fifth Circuit noted here that “final civil judgments having

the effect of res judicata, even if un-executed, are not voided or af-

fected by a subsequent change in the decisional law on which they

were based.” App. 8a n.27. “Generally speaking,” id., this is no

doubt true, but it begs the very question presented here—whether

Rule 60(b)(6) can ever “affect” a final judgment in light of changes

in the controlling decisional law.

14

In short, had the district court’s exercise of discretion

under Rule 60(b)(6) been reviewed in the Eleventh Circuit

pursuant to Ritter v. Smith, it would have been sustained.

In overturning that exercise of discretion, the Fifth Circuit

issued a decision in conflict with the Eleventh Circuit.

B. The Tenth Circuit’s Decision in

Pierce v. Cook & Co.

On the same side of the divide as the Eleventh Circuit

stands the Tenth Circuit. In the widely cited Pierce v. Cook

& Co., 518 F.2d 720 (10th Cir. 1975) (en banc), cert. denied,

423 U.S. 1079 (1976), the court considered whether relief

was available under Rule 60(b)(6) to reopen a judgment in

light of an intervening decision of the Oklahoma Supreme

Court. The case was a multi-plaintiff diversity action aris-

ing out of an automobile accident. The first Pierce decision

affirmed a summary judgment for the defendant based on

controlling Oklahoma precedent. See 437 F.2d 1119, 1122

(10th Cir. 1970) (citing Marion Machine, Foundry & Supply

Co. v. Duncan, 101 P.2d 813 (Okla. 1940)). Another victim

of that same accident litigated his claim in the Oklahoma

courts and, more than three years after the Tenth Circuit

decision became final, obtained a decision expressly over-

ruling that Oklahoma precedent. See Hudgens v. Cook In-

dustries, Inc., 521 P.2d 813, 816 (Okla. 1973). The federal

plaintiffs then returned to federal court seeking relief based

on this change in the controlling decisional law. The Tenth

Circuit granted that relief in the second Pierce decision.

Applying the rule that “in extraordinary situations, re-

lief from final judgments may be had under Rule 60(b)(6),

when such action is appropriate to accomplish justice,” 518

F.2d at 723, the court found the situation “extraordinary”

in large part because of the relatedness of the federal and

state cases. That is, “the decisional change . . . came in a

case arising out of the same accident as that in which the

plaintiffs now before us were injured.” Id.; see also Ritter,

811 F.2d at 1403 (observing that “the two relevant cases in

ee |

15

Pierce were closely related, thereby creating the extraord-

inary circumstances necessary for Rule 60(b) relief”).

The Tenth Circuit also drew support from this Court’s

extraordinary actions in Gondeck v. Pan American World

Airways, Inc., 382 U.S. 25 (1965) (per curiam), discussed in

Pierce, 518 F.2d at 723. In Gondeck, the Fifth Circuit had

overturned the Labor Department’s award of death benefits

to the survivor of an employee killed in a jeep accident out-

side of a defense base in the British West Indies. Id. at 26. .

The survivor sought review here, but the Court denied her

petition for certiorari on June 11, 1962. 370 US. 918. The

Court then denied her petition for rehearing on October 8,

1962. 371 U.S. 856. But on the survivor’s motion for leave

to file a second petition for rehearing, the Court granted the

petition on October 18, 1965, more than three years later,

and reversed the Fifth Circuit’s judgment.

The Court was motivated to this extraordinary action

by the Fourth Circuit’s intervening decision upholding the

Department’s award to the survivors of another employee

killed in the same accident. See 382 U.S. at 26-27. In addi-

tion to these “intervening circumstances,” the Court acted

because “the Fifth Circuit misinterpreted the [governing]

standard in this case” and further because “of those eligible

for compensation from the accident, this petitioner stands

alone in not receiving it.” Id. at 28. These circumstances

implicated the maxim that “the interest in finality of litiga-

tion must yield where the interests of justice would make

unfair the strict application of [the Court’s regular] rules.”

Id. at 26-27 (quoting United States v. Ohio Power Co., 353

U.S. 98, 99 (1957)); see also id. at 30 (Harlan, J., dissenting)

(“The result reached in this case has been achieved at the

expense of the sound legal principle that litigation must at

some point come to an end.”).*

* The Eleventh Circuit’s decision in Ritter, 811 F.2d at 1403, also

drew support from Gondeck.

16

Although the Tenth Circuit’s decision in Pierce is sev-

eral decades old, it retains vitality and has been extended

to the very situation of the present case: “In this circuit, a

change in relevant case law by the United States Supreme

Court warrants relief under [Rule] 60(b)(6).” Adams v. Mer-

rill Lynch Pierce Fenner & Smith, 888 F.2d 696, 702 (10th

Cir. 1989) (citing Pierce), quoted in Metz v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1491 (10th Cir.

1994); see also Woods v. Kenan (In re Woods), 173 F.3d 770,

780 (10th Cir.) (relying on Pierce in upholding a bankruptcy

court’s reliance on Rule 60(b)(6) to reopen a case two years

after it had been closed), cert. denied, 528 U.S. 878 (1999).°

In short, had the district court’s exercise of discretion

under Rule 60(b)(6) been reviewed in the Tenth Circuit pur-

suant to Pierce v. Cook & Co. and its progeny, it would have

been sustained. In overturning that exercise of discretion,

the Fifth Circuit issued a decision also in conflict with the

Tenth Circuit. That conflict, in conjunction with the Fifth

Circuit’s additional conflict with the Eleventh Circuit’s de-

cision in Ritter v. Smith, warrants review by this Court.

II. The Authority of the District Courts to Grant

Rule 60(b)(6) Relief Based on a Change in the

Decisional Law Is a Recurring Question as to

Which the Lower Courts Exhibit Confusion.

In addition to the conflict catalogued above, review is

warranted because the question presented is both recurring

and (in two respects) a source of confusion in the lower fed-

eral courts. We take up these points in turn.

° Notably, the Eleventh Circuit in Ritter expressly relied on Pierce

in discussing relatedness: “An analogous situation arises where

the two cases are related, not because the supervening decision

was rendered to resolve a conflict between them but because they

arose out of the same transaction.” Ritter, 811 F.2d at 1402-03

(discussing Pierce, 518 F.2d at 722-23).

17

The recurrence of decisional law-related issues under

Rule 60(b)(6) is surprisingly robust. In addition to the deci-

sions from the Fifth, Tenth, and Eleventh Circuits treated

above, recent and representative decisions from the First,

Second, Third, Fourth, Seventh, and Eighth Circuits are col-

lected in 12 Moore’s Federal Practice § 60.48[5][b] & n.45

(3d ed. 2005), cited in Agostini v. Felton, 521 U.S. at 239. In

most of these decisions, relief is denied, doubtless reflecting

the “extraordinary circumstances” principle that is derived

from Ackermann v. United States, 340 U.S. at 199. But see

Pichardo v. Ashcroft, 374 F.3d 46, 56 (2d Cir. 2004) (grant-

ing Rule 60(b)(6) relief based on a change in the controlling

decisional law, because “[a]bsent a meaningful and substan-

tive review of [the moving party’s] case, manifest injustice

will occur because the change in law goes to the very basis

of [the party’s] deportation”).

On the other hand, in contrast to the decision below,

these decisions also consistently reflect the principle that

“the trial court is in a much better position [than the appel-

late courts] to pass upon the issues presented in a motion

pursuant to Rule 60(b).” Standard Oil Co. v. United States,

429 U.S. 17, 19 (1976) (per curiam). Accordingly, as set out

in the margin, the decisions consistently uphold the district

court’s exercise of discretion.®

§ See Reform Party v. Allegheny County Department of Elections,

174 F.3d 305, 311-12 (3d Cir. 1999) (en banc) (concluding that the

district court did not abuse its discretion in denying relief where

the intervening decision of this Court “did not overrule the hold-

ing of the [prior] panel,” and where the moving party “chose not to

petition for certiorari in the [prior] case”); Dowell v. State Farm

Fire & Casualty Automobile Insurance Co., 993 F.2d 46, 48 (4th

Cir. 1993) (concluding that the district court did not abuse its dis-

cretion in denying relief where the movant deliberately chose not

to appeal the original adverse ruling); Cincinnati Insurance Co. v.

Flanders Electric Motor Services, 131 F.3d 625, 631 (7th Cir. 1997)

(concluding that the “district court did not abuse its considerable

discretion in determining that the change in state decisional law

(continued...)

18

But if these Rule 60(b)(6) issues are recurring, they are

also occasions of confusion. One such occasion is the appli-

cation of the principle that district courts have “discretion,”

Browder, 434 U.S. at 263 & n.7—or as the Seventh Circuit

has put it, “considerable discretion,” Cincinnati Insurance

Co. v. Flanders Electric Motor Services, 131 F.3d 625, 631

(7th Cir. 1997)—in granting or denying relief pursuant to

Rule 60(b)(6). For example, despite this Court’s statement

_ that “the trial court is in a much better position” to resolve

Rule 60(b) issues, Standard Oil, 429 U.S. at 19, and its own

acknowledgment that “a decision to reopen an action under

Rule 60(b) will necessarily require fact-intensive weighing

of the equities in a particular case,” DeWeerth v. Baldinger,

38 F.3d 1266, 1271 (2d Cir. 1994), the Second Circuit has

overturned a district court’s exercise of discretion in circum-

stances very similar to those in the Tenth Circuit’s decision

in Pierce. See id. at 1272-75 (reversing grant of relief under

Rule 60(b)(6)). Although it reached the opposite result, the

Second Circuit also overturned a district court’s exercise of

discretion in Pichardo v. Ashcroft. See 374 F.3d at 56 (re-

versing denial of relief under Rule 60(b)(6)).

Likewise, the decision below exhibits virtually no re-

‘spect for the institutionally superior position of the district

court. Indeed, it fails to mention, let alone give the district

court credit for considering, that the denial of Rule 60(b)(6)

relief in this case will leave the federal taxpayer “perman-

ently out of pocket” almost $20 million plus interest due to

the School Board’s 1,570 false claims. See App. 24a.

§ (...continued)

resulting from [two] Indiana Supreme Court cases . . . created no

extraordinary circumstances”); Kansas Public Employees Retire-

ment System v. Reimer & Koger Associates, 194 F.3d 922, 926 (8th

Cir. 1999) (finding “no abuse of discretion in the district court’s

ruling” denying relief where the court “properly gla]ve weight to

equitable considerations,” including conduct by the moving party

that was “objectively unreasonable and done in bad faith”), cert.

denied, 529 U.S. 1004 (2000).

19

Another occasion for confusion is exemplified by two

of Judge Easterbrook’s opinions for the Seventh Circuit. In

Tonya K. v. Board of Education, 847 F.2d 1243, 1249 (7th

Cir. 1988), the court of appeals affirmed the district court’s

decision to reopen a case under Rule 60(b)(6) to afford the

plaintiffs the advantage of an intervening statutory amend-

ment crafted to overrule Smith v. Robinson, 468 U.S. 992

(1984). That reopening “was necessary to afford the plain-

tiffs treatment similar to that received by others who were

fortunate enough to receive final judgment before Smith.”

847 F.2d at 1249. The district court faced “a hard choice,”

but its choice to reopen the judgment was affirmed because

the court “resolved it in a principled way.” Id.

By contrast, in Norgaard v. DePuy Orthopaedics, 121

F.3d 1074, 1076 (7th Cir. 1997), the court of appeals seemed

to suggest that the choice to reopen a final judgment based

on an intervening change in the law could not possibly be

affirmed. While Polites v. United States, 364 U.S. 426, 433

(1960), “raised the possibility that ‘a clear and authoritative

change in governing law’ would justify reopening” a final

judgment, that “door was closed again” in Plaut v. Spend-

thrift Farm, Inc., 514 U.S. 211 (1995). Norgaard, 121 F.3d

at 1076. Thus, the Seventh Circuit per Judge Easterbrook

expressly took aim at the Tenth Circuit’s decision in Pierce,

concluding that the circumstances presented by that case

are “not strong enough, given Plaut,” to successfully invoke

Rule 60(b)(6). 121 F.3d at 1078; cf. id. (“Thus it can be no

surprise that other circuits have not followed Pierce.”).

If the decade-old decision in Plaut has indeed rendered

Rule 60(b)(6) a nullity in cases involving changes in control-

ling decisional law, only one court appears to know it. That

ignorance, together with both the confusion in applying the

abuse-of-discretion standard and the recurring character of

the issue, confirm that the Court should take up the ques-

tion presented.

+

a

20

CONCLUSION

The petition for writ of certiorari should be granted.

Dated: April, 2005.

Respectfully submitted,

ERIC GRANT

VICTORIA LENNOX BARTELS (Counsel of Record)

WILLIAM F.. WESSEL ATTORNEY AT LAW

WESSEL & ASSOCIATES Suite 100

127 Camp Street 8001 Folsom Boulevard

New Orleans, LA 70130 Sacramento, CA 95826

(504) 568-1112 (916) 388-0833

Counsel for Petitioners