Opposition Brief — Duwamish Indian Tribe v. United States

4 : 7 }

Supren U.S. |

; . ;

‘

4 {

: ;

: s t

5 " }- i :

No. 96-1607 | |

5 men es Se A RRC SOR RRS firey

ort nla aiateg

Jun the Supreme Court of the Gnited States

OcTOBER TERM, 1996

DYUWAMISH INDIAN TRIBE, ET AL., PETITIONERS

PITION FOR A WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WALTER DELLINGER

As 4 ng Solicitor (re hie ral

LOIS J. SCHIFFER

Ass stant Attorne u (reneral

MARTIN W. MATZEN

DAVID C. SHILTON

Attonr CPUS

De partment of Justice

Washington, D.C. 20520-0001

z PI 7

df )

ij

QUESTION PRESENTED

Whether the district court abused its discretion in

denying a motion, under Federal Rule of Civil Proce-

dure 60(b)(6), for relief from a fourteen-year-old

judgment, on the ground that the now-deceased judge

may have been suffering from an early stage of a

mentally debilitating illness at the time he entered

the judgment.

(I)

TABLE OF CONTENTS

Page

I Sie esscasacensessennsencranconaucivenencenonee.css 1

I Stitt inreynecocnsesadinsanansaseoneserecensnessscesesxcec.. 1

I tines anasseracesntssancestssrasacacsasasaenenecenee..,... 2

irc scsanntncenanacieancesvaracenssctecsouesea...... 9

I le latititnsiasieriantihensrsnasessccesaseueeeseoseesces..ce..... 14

TABLE OF AUTHORITIES

Cases:

Bracy v. Gramley, No. 96-6133, 1997 WL 303400

ie caacnindidcincastnsccnenaensnce..... 12

Liljeberg v. Health Services Acquisition Corp., 486

I I hiss steeniorsonmrthuniannsnasseanesenees.. 6, 8, 11, 13

Slayton v. Smith, 404 U.S. 53 ee 12

Tanner v. United States, 483 U.S. 107 REDS E) ..ccecene 13

United States v. Alpine Land & Reservoir Co., 984

F.2d 1047 (9th Cir.), cert. denied, 510 U.S. 813

RR iadlatacioneenitnsdsincisinnseavnisseocsnnseareneace....... s

United States v. Dioguardi, 492 F.2d 70 (2d Cir.),

cert. denied, 419 U.S. 873 (1974) ooo.ececccccccceceecese 13

1981), cert. denied, 454 U.S. 1143 (1982) ............ 2, 4,5

United States v. Washington, 384 F. Supp. 321

(W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir.

1975), cert. denied, 423 U.S. 1086 eae 2

Passenger Fishing Vessel Ass’n, 443 U.S. 658

i i ohictitepsaclrsiewasianienseecasecstnonsctasanseesescose..... 3

Statutes and rule:

I Neeser scsdlnshnnsnnsnmoasuiccsnichaniecaseseoses...... 12

EE 9, 11

iit hatisibnlicasecsonssansenensiarcasseesnansoseoce......., 12

28 U.S.C. 1865(D)(4) ...........cccccscsseseecesssssecossoseceeseee... 12

(IIT)

Rule—Continued: Page

yy. So he eS. eee 6, 8, 9, 10, 11, 12, 13

Miscellaneous:

Guy McKhann, M.D., et al., Clinical diagnosis of

Alzheimer’s disease: Report of the NINCDS-

ADRDA Work Group under the auspices of Depart-

ment of Health and Human Services Task Force on

Alzheimer’s Disease, 34 Neurology 939 (1984) ......... 6

In the Supreme Court of the Gnited States

OCTOBER TERM, 1996

No. 96-1607

DUWAMISH INDIAN TRIBE, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

19a) is reported at 98 F.3d 1159. The opinion of the

district court (Pet. App. 22a-30a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 23, 1996. A petition for rehearing was denied

on January 6, 1997. Pet. App. 20a-2la. The petition

for a writ of certiorari was filed on April 7, 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

Petitioners, the Duwamish, Snohomish, and Steila-

coom Indian tribes,’ seek to reopen a chapter of litiga-

tion concerning Indian fishing rights in the State of

Washington that began in 1970 and was resolved in

1979.

1. a. In 1970, the United States, on its own behalf

and as trustee for seven Indian tribes, brought an

action in the United States District Court for the

Western District of Washington against the State of

Washington and certain state agencies. The United

States sought declaratory and injunctive relief con-

cerning fishing rights of the plaintiff tribes, under a

series of treaties in the 1850s, in which Indian tribes

had relinquished to the United States their aborigi-

nal rights to land in exchange for the right to take

fish in certain areas of the then-Washington Terri-

tory. Seven additional tribes intervened as plaintiffs

shortly after suit was filed. In 1974, United States

District Judge George H. Boldt ruled that all 14

plaintiff tribes had treaty fishing rights that entitled

them to take up to 50 percent of the harvestable fish

on runs passing through their traditional off-reserva-

tion fishing grounds. United States v. Washington,

384 F. Supp. 312, 327-423 (W.D. Wash. 1974), aff'd, 520

F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086

(1976); Pet. App. 5a & n.1, 23a-24a. Judge Boldt’s rul-

ing met substantial resistance from the State and

1 Although we use the term “tribe” to refer to each of the

three petitioners, we use that term in a generic manner, not to

suggest that petitioners constitute tribes in the legal or political

sense. See United States v. Washington, 476 F. Supp. 1101,

1104 n.1 (W.D. Wash. 1979), aff'd, 641 F.2d 1368 (9th Cir. 1981),

cert. denied, 454 U.S. 1143 (1982).

Se

3

spawned other lawsuits that ultimately reached this

Court, where Judge Boldt’s interpretation of the

treaties was affirmed. Jd. at 5a-6a n.3; see Washing-

ton v. Washington State Commercial Passenger

Fishing Vessel Ass’n, 443 U.S. 658 (1979).

b. Meanwhile, shortly after Judge Boldt’s 1974 de-

cision, five additional Indian groups, including the

three petitioners herein, moved to intervene as plain-

tiffs, contending that they also are tribes entitled to

rights under the treaties. On September 13, 1974,

Judge Boldt referred the matter to a magistrate judge

to analyze the status, under the treaties, of the five

intervenors. Pet. App. 6a. After receipt of evidence

and a hearing, the magistrate judge issued a report on

March 5, 1975. The magistrate judge concluded that

none of the five intervenors qualified as a treaty tribe

and recommended a conclusion of law that none of

them had fishing rights under the treaties at issue.

Id. at Ta.

The five intervenors appealed to Judge Boldt from

the magistrate judge’s report. Judge Boldt held a de

novo evidentiary hearing during three days in 1975,

then directed the parties to submit additional evi-

dence in 1976, and heard oral argument in 1977. Pet.

App. 7a.

While the matter was under submission, Judge

Boldt underwent surgery for an aortic aneurysm in

February 1978. He informed counsel in July 1978 that

he was not yet fully recovered, but expected to rule on

the matter within the next several months. Pet. App.

7a. On February 7, 1979, however, Judge Boldt noti-

fied counsel that, because of his failing health, he had

requested that the chief judge remove him from the

case. Four of the five intervenors, including two peti-

tioners herein, filed a motion requesting that Judge

Boldt decide the question whether they qualify as

treaty tribes with respect to fishing rights. Ibid.

The chief judge granted the motion on March 14, 1979,

noting that it was in the best interests of judicial

administration, economy, and the interests of all

parties, and that Judge Boldt had indicated that he

would be willing to consider and rule on the matter.

Ibid.

On March 23, 1979, Judge Boldt issued his decision,

ruling that the five intervenors do not have fishing

rights under the treaties at issue. United States v.

Washington, 476 F. Supp. 1101, 1102-1111 (W.D. Wash.

1979), aff'd, 641 F.2d 1868 (9th Cir. 1981), cert. denied,

454 U.S. 1143 (1982). In doing so, he adopted, with

minor changes, the proposed findings of fact and con-

clusions of law that had been submitted by the United

States. Pet. App. 7a-8a. Judge Boldt subsequently

denied the five intervenors’ motion for reconsidera-

tion. Jd. at 8a.

ce. The court of appeals affirmed Judge Boldt’s rul-

ing rejecting the treaty fishing-right claims of the

five intervenors. United States v. Washington, 641

F.2d 1368 (9th Cir. 1981). As a threshold matter, the

court noted that Judge Boldt had adopted the United

States’ proposed findings and conclusions without

substantial change. /d. at 1371. It stated that such

verbatim adoption is disfavored and “calls for close

scrutiny by an appellate court,” although “findings : |

still must be upheld unless clearly erroneous.” I[bid. |

The court of appeals rejected the legal standard ,

that Judge Boldt had indicated was decisive in deter-

mining whether the intervenors had treaty-tribe

status, and it found that, although Judge Boldt men-

tioned other considerations that were relevant, they

did “not adequately define the controlling principles.”

TT

5

641 F.2d at 1372. Therefore, the court of appeals pro-

ceeded to determine the correct legal principles that

should govern the case. Jd. at 1372-1373.

After having announced the controlling law, the

court of appeals undertook to examine the record in

the case to determine whether the result reached by

the district court was correct Jespite the erroneous

legal analysis thereunder. 641 F.2d at 1373-1374.

“After close scrutiny,” the court of appeals concluded

that the record evidence supported the district

court’s finding of fact that, since treaty times, the

five intervenors had not functioned as “continuous

separate, distinct and cohesive Indian cultural or

political communit[ies].” Jd. at 1373. The court

therefore concluded that “the district court correctly

resolved th[e] question [of maintenance of tribal

structure] despite its failure to apply the proper

standard,” and affirmed the district court judgment.

Id. at 1874.

This Court denied review. 454 U.S. 1143 (1982).

2. a. Judge Boldt passed away on March 18, 1984.

His death certificate lists pneumonia as the immedi-

ate cause of death, and Alzheimer’s disease as a secon-

dary cause. According to the death certificate, the

onset of Alzheimer’s was six years earlier. Pet. App.

8a; C.A. Exe. Rec. 30.°

2 In a dissenting opinion, Judge Canby disagreed with the

panel majority’s analysis of the legal significance of the district

court’s factual findings, and he analyzed those findings in

detail. 641 F.2d at 1374-1376. Judge Canby stated that he

would have remanded the matter to the district court for

further findings. Jd. at 1376.

3 The death certificate indicates that no autopsy was

performed. Accordingly, it is impossible to say with certainty

that the judge actually had Alzheimer’s disease at the time of

More than nine years after the judge’s death, more

than fourteen years after entry of judgment, and

almost one and one half years after publication of a

newspaper article about the judge’s health (see note 3,

supra), petitioners filed a motion, under Federal Rule

of Civil Procedure 60(b)(6), for relief from the 1979

judgment. Pet. App. 9a, 24a-25a. The United States,

the State of Washington, and various Indian tribes

that had been involved in the extensive litigation over

the treaty fishing rights, opposed the motion. /d. at

25a. At oral argument a year later, petitioners as-

serted that the motion was for the limited purpose of

conducting discovery into the judge’s mental health

at the time of the entry of judgment, but the record

did not reflect that petitioners had filed any motion

for discovery during the elapsed year. /d. at 9a.

b. The district court denied relief. Pet. App. 22a-

30a. Relying on Liljeberg v. Health Services Acquisi-

tion Corp., 486 U.S. 847, 863-864 (1988), the court

recognized that relief from judgment under Rule

60(b6) should be granted only in “extraordinary

circumstances” that require relief to correct injus-

his death in 1984, let alone in 1979. See C.A. Supp. Exc. Rec. 3

(Guy McKhann, M.D., et al., Clinical diagnosis of Alzheimer’s

disease: Report of the NINCDS-ADRDA Work Group under

the auspices of Department of Health and Human Services

Task Force on Alzheimer’s Disease, 34 Neurology 939 (1984)).

Petitioners contend that they became aware of the contents

of the judge’s death certificate only in June 1992 when a

newspaper reported that, at the time of the 1979 ruling, Judge

Boldt suffered from Alzheimer’s disease. Pet. App. 8a. The

article also relied on statements by the judge’s son regarding

the time of onset, but the son stated that he believed his father

to have been mentally competent when he entered the ruling

against petitioners in 1979. Jd. at 8a-9a.

7

tice. Pet. App. 25a-26a. The court examined the fac-

tors of timeliness, public interest in finality of judg-

ments, and need for correction of injustice. It re-

jected petitioners’ contention that the court had to

make the “exceedingly difficult determination” of how

to resolve a direct conflict between a need for finality

and a need to correct an injustice. Rather, “[{a]fter

carefully examining all of the events surrounding

this case,” the court concluded that “no manifest

injustice was done.” Jd. at 28a.

The court reviewed the record and concluded that

petitioners had not been prevented from submitting

any evidence or arguments for judicial consideration

when the district court ruled on their treaty status.

And, the court observed, petitioners’ reliance on the

suggestion that Judge Boldt may have suffered from a

mental impairment at the time he signed the final

order in 1979 ignored the fact that he was not the only

judicial officer to have reviewed petitioners’ conten-

tions and to have reached the same conclusion. The

court pointed out that, after five days of hearings and

review of testimony and evidence, the magistrate

judge had reached the same conclusion that Judge

Boldt subsequently did. Pet. App. 28a. “More signifi-

cantly,” the court emphasized, the court of appeals

panel that reviewed Judge Boldt’s judgment on direct

appeal reached the same result based on an analysis

that constituted more than a review for clear error.

Id. at 28a-29a. The court concluded that, “[gjiven the

language in the Ninth Circuit opinion indicating that

the court carefully examined the evidence presented

by the moving tribes before deciding to affirm Judge

Boldt’s findings as correct,” petitioners “failed to

make the kind of showing of manifest error necessary

— =

8

to even consider reopening a judgment so many years

after its entry.” Jd. at 29a.

ec. The court of appeals affirmed. Pet. App. la-19a.

It held that the district court had not abused its dis-

cretion in denying petitioners’ Rule 60(b)(6) motion.

The court concluded that “[t]his is not one of those

rare cases where ‘extraordinary circumstances’ war-

rant vacating an ‘erroneous judgment.’” Pet. App. lla

(quoting in part Liljeberg, 486 U.S. at 864, and United

States v. Alpine Land & Reservoir Co., 984 F.2d 1047,

1049 (9th Cir.), cert. denied, 510 U.S. 813 (1993)). The

court noted that the record indicated that Judge Boldt

had remained aware of his obligation to decide peti-

tionexs’ treaty status, such that he had asked to be

removed from the case when he felt that his physi-

cally weakened condition would not permit him to

decide the matter within several months as antici-

pated. Pet. App. lla. Four of the five intervenors,

including two petitioners, nonetheless had requested

that Judge Boldt decide the issue, and the judgment

from which petitioners now seek relief resulted from

the court’s granting that request. Jd. at 7a, lla. The

court also emphasized that a magistrate judge and the

court of appeals itself had closely examined the case

and reached the same conclusion as Judge Boldt. Jd.

at 12a.*

In a concurring opinion, Judge Kozinski reached

the same result via a different analysis. He concluded

that Rule 60(b)(6) would not have authorized the

‘ In closing, the court indicated that “[a] decision whether

Rule 60(b)(6) gives the district court the power to correct a

manifest injustice arising from a judge’s disability should await

the extraordinary circumstances in which it might be

presented.” Pet. App. 12a.

ey ee eee mm eee

9

district court to grant petitioners relief from judg-

ment, even if Judge Boldt had been mentally disabled

at the time of entry of judgment, because Rule 60(b)(6)

authorizes relief only where relief would have been

available at the time of the entry of judgment. In

Judge Kozinski’s view, petitioners would not have

been able to have Judge Boldt removed from the case

at the time of the entry of judgment had they been

aware of a mental disability while he was presiding

over their case, because there is no statutory basis

for requiring a judge to recuse himself on grounds

of mental disability. Pet. App. 13a-16a (discussing

statutes and case law). The only recourse would

have been to complain to the circuit judicial council

through a separate, quasi-adjudicative proceeding. Id.

at 14a (citing 28 U.S.C. 372(c)).

Judge Kozinski concluded, however, that the panel

majority’s erroneous assumption regarding the scope

of Rule 60(b)(6) was offset because it nonetheless

denied relief based on its determination that the

district court did not abuse its discretion by denying

petitioners discovery. In Judge Kozinski’s view, al-

though that ruling led to the correct result, it too was

erroneous because, if mental disability were a basis

for setting aside a judgment under Rule 60(b)6),

petitioners had made a showing sufficient to justify

discovery. Id. at 16a-17a.

ARGUMENT

1. Petitioners assert (Pet. 2, 18) that “(t]he funda-

mental question in this case is whether a litigant is

entitled to relief from a judgment if the district court

judge lacked mental competence at the time he issued

his decision.” They contend (id. at 11-14) that the

court of appeals’ opinion does not comport with the

10

Court’s due process jurisprudence regarding the

right to a fair trial and to a competent and impartial

trier of fact. They urge (id. at 14) the Court to

“confirm for the first time” a due process right to a

competent judge. They also contend (id. at 14-16) that

the panel majority’s refusal to enforce that right is

inconsistent with this Court’s rulings regarding the

availability of relief under Federal Rule of Civil Pro-

cedure 60(b)(6) to effectuate due process rights.

The court of appeals’ panel majority did not address

the question presented by petitioners. Rather, it as-

sumed, arguendo, that the due process right asserted

by petitioners exists. Moreover, it assumed that

relief for violation of that right would be available

under Rule 60(b)(6) in certain circumstances. The

court of appeals concluded, however, that, in the par-

ticular circumstances of this case, the district court

had not abused its discretion in determining that

petitioners had not made a sufficient showing to

warrant such relief. See Pet. App. 1la-12a.

Consequently, contrary to petitioners’ suggestion

(Pet. 11-14), the decision below does not implicate

important due process issues warranting review by

this Court. Petitioners’ true complaint regarding

treatment of the due process claim below is with the

rationale of the concurring opinion. That opinion

(Pet. App. 12a-19a) did address the question presented

by petitioners and reached a conclusion contrary to

that urged by petitioners. That reasoning was based

on the view that Rule 60(b)(6) would not authorize

relief from judgment based on evidence regarding

mental impairment of a judge because such impair-

ment cannot be used to seek a judge’s recusal at the

time of judgment or on direct appeal. Jd. at 13a-16a.

Rather, in the view of the concurring opinion,

11

recourse in such instances must be made to the

circuit judicial council. Pet. App. 14a (citing 28

U.S.C. 372(c)).

Petitioners do not demonstrate, however, that if

review were granted, the question of whether post-

judgment relief is ever available based on alleged

mental impairment of the judge, would even be

reached by this Court. Rather, as the court of appeals

panel majority reasoned, failure to find that peti-

tioners suffered an injustice resolves the case under

Rule 60(b)(6). Because it assumed that Rule 60(b)(6)

relief would be available based on a judge’s mental

disability under certain circumstances, the panel

majority’s ruling does not present any conflict with

the due process right that petitioners derive from

this Court’s jurisprudence. Indeed, the court of ap-

peals (as well as the district court) relied upon, and

reached a result consistent with, the authority cited

by petitioners (Pet. 14-15) regarding Rule 60(b)(6).

See Pet. App. 1la (quoting in part Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847, 863-864

(1988)); id. at 25a-26a (district court’s citation to

Liljeberg).

The court of appeals weighed the considerations

identified by the Court and cited by petitioners as

relevant to a Rule 60(b)(6) determination. See Pet. 15;

Pet. App. 10a-12a; see also id. at 26a-30a (district

court’s weighing of factors). The court of appeals (as

well as the district court) simply viewed the circum-

stances of the case differently than do petitioners and,

under the legal analysis urged by petitioners, found

that the balance between likely injustices warranted

denial of relief. That determination does not warrant

further review. Moreover, as the court of appeals

stated, consideration of the question of whether relief

12

from judgment would be available upon a showing of

incompetence and injustice should await a case,

unlike this one, that involves the extraordinary

circumstances in which that question might be

presented. See Pet. App. 12a.°

5 Even if it were likely that the Court would reach the

question of whether relief is ever available under Rule 60(b)(6),

petitioners do not demonstrate that it warrants review. Peti-

tioners rely (Pet. 11-12 & n.4) on cases that emphasize the

importance of judicial impartiality. Also, in Bracy v. Gramley,

No. 96-6133, 1997 WL 303400 (June 9, 1997), the Court recently

held that a habeas petitioner had made a sufficient factual

showing to establish good cause for discovery on a claim of

judicial bias in a death penalty case. The Court emphasized

that there was extensive evidence in that case to rebut the

presumption that the judge properly discharged his official

duties, because the judge in that case had been convicted on

corruption charges and the allegation was that he was actually

biased against petitioner in his particular case as well. The

issues presented in cases such as that—judicial bias, partiality

and financial interest—all go to factors that are relevant to the

disqualification of judges under 28 U.S.C. 455, whereas mental

impairment is not. Also, as petitioners acknowledge, in Slayton

v. Smith, 404 U.S. 53 (1971), the one case involving an allega-

tion that a judge suffered from senility at the time of sentenc-

ing, the Court disposed of the case on grounds of failure to

exhaust state remedies in habeas proceedings, without reaching

the merits of the issue.

Petitioners also rely (Pet. 12) on cases concerning the

disqualification of jurors because of lack of mental capability.

The considerations relating to disqualification of jurors and

judges are different, however, as can be seen from a compari-

son of 28 U.S.C. 1865(b)(4)(“mental or physical infirmity” may

be grounds for juror disqualification) with 28 U.S.C. 144 and

455 (no mention of mental or physical infirmity among grounds

specified for disqualification of judges). And in the juror cases

involving post-verdict evidence of possible juror incompetency,

courts “have refused to set aside a verdict, or even to make

13

2. Petitioners contend (Pet. 16-18) that the Court

should grant review because the court of appoals

disregarded the important fact-finding role of a dis-

trict court judge.

The court of appeals’ reliance on the fact that Judge

Boldt’s ruling was consistent with the conclusion of

the magistrate judge, and was upheld after “close

scrutiny” by the court of appeals, does not denigrate

the importance of the district court’s fact-finding

role. It simply reflects that courts, in response to a

Rule 60(b)(6) motion, must consider “the risk of in-

justice to the parties in the particular case,” along

with “the risk that the denial of relief will produce

injustice in other cases, and the risk of undermining

the public’s confidence in the judicial process.” Lilje-

berg v. Health Services Acquisition Corp., 486 U.S.

at 864. The fact that other judges had carefully scru-

tinized petitioners’ claims and found them meritless

reduces the risk of possible injustice, and is an

appropriate factor to weigh in determining whether to

grant relief under Rule 60(b)(6).

further inquiry, unless there be proof of an adjudication of

insanity or mental incompetence closely in advance . . . of

jury service,” or proof of “a closely contemporaneous and

independent post-trial adjudication of incompetency.” Tanner

v. United States, 483 U.S. 107, 119 (1987) (quoting United

States v. Dioguardi, 492 F.2d 70, 80 (2d Cir.), cert. denied, 419

U.S. 873 (1974)); see Dioguardi, 492 F.2d at 80 nn. 13 & 14

(collecting cases). There was no such adjudication here.

14

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

LoIs J. SCHIFFER

Assistant Attorney General

MARTIN W. MATZEN

DAVID C. SHILTON

Attorneys

JUNE 1997