# Opposition Brief — Duwamish Indian Tribe v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 806

## Text

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No. 96-1607 | |

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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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0550%3A2. Public record. Not legal advice.