Salazar Ex Rel. Salazar v. District of Columbia

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2010 Decided February 8, 2011

No. 10-7031

OSCAR SALAZAR, BY HIS PARENTS AND NEXT FRIENDS,
ADELA AND OSCAR SALAZAR, ET AL.,
APPELLEES

CLARENCE H. CARTER, IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF THE DEPARTMENT OF HUMAN SERVICES,
APPELLANT

v.

DISTRICT OF COLUMBIA AND VINCENT C. GRAY,
IN HIS OFFICIAL CAPACITY AS
MAYOR OF THE DISTRICT OF COLUMBIA,
APPELLANTS

Appeal from the United States District Court
for the District of Columbia
(No. 1:93-cv-00452)

Richard S. Love, Senior Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued the
 2

cause for appellant. With him on the briefs were Peter J.
Nickles, Attorney General, Todd S. Kim, Solicitor General, and
Donna M. Murasky, Deputy Solicitor General.

Kathleen L. Millian argued the cause for appellees. With
her on the brief were Bruce J. Terris and Zenia Sanchez Fuentes.
Lynn E. Cunningham and Martha J. Perkins entered
appearances.

Before: ROGERS and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The District of Columbia appeals
the denial of a motion pursuant to Rule 60(b)(6) of the Federal
Rules of Civil Procedure to vacate an order on dental services
under a settlement agreement regarding medical services for
children eligible for Medicaid. The district court ruled that the
motion was untimely and, alternatively, that the challenge to its
authority to order relief exceeding the federal standards
underlying the settlement agreement lacked merit in view of its
authority to enforce the agreement. On appeal, the District
government contends that the district court erred in dismissing
the motion as untimely, and abused its discretion by imposing
requirements that exceed the parties’ settlement agreement.

The circumstances do not indicate that the motion to vacate
was untimely. In the context of institutional reform litigation,
which contemplates ongoing district court proceedings as
occurred here, the parties continued to attempt to resolve their
differences regarding compliance with the dental order, with the
district court’s encouragement. On January 27, 2006, the court-
appointed monitor filed a report indicating that goals set by the
dental order were unrealistic and a new evaluation was
 3

warranted. The District government filed its motion to vacate
four months later. Nonetheless, the district court could properly
find that the District government failed to show the requisite
extraordinary circumstances to warrant relief under Rule
60(b)(6). The legal argument that the district court exceeded its
authority by requiring the District government to engage in
activities to which the parties did not agree and that are not
required by federal law could have been raised on appeal from
the dental order; the District government noticed an appeal and
then withdrew it. Accordingly, we affirm the denial of the Rule
60(b)(6) motion.

I.

This appeal arises in the context of a complex remedial
order concerning medical services and assistance provided by
the District of Columbia government pursuant to the Medicaid
provisions of the Social Security Act, 42 U.S.C. §§ 1396a,
1396d (Chapter 19). On January 22, 1999, the settlement
agreement between the plaintiff class (“appellees”) and the
District government was approved and entered as an order by
the district court. The Settlement Order provides in paragraph
36 that the District government “shall provide or arrange for the
provision of early and periodic screening, diagnosis, and
treatment (EPSDT) services when they are requested by or on
behalf of children.” As relevant, appellees filed two motions to
enforce the provisions relating to dental care.

First, on July 3, 2002, appellees moved to enforce
Paragraph 36 in part because in 2001 only 30.65% of eligible
children received dental services and only 20.55% received
preventive dental services. By order entered seven months later,
the district court found that the District government was in
violation because its own reports showed that “the vast majority
of children within the class covered by this litigation who should
 4

receive lead blood screening and dental services are not getting
them.” Mem. Op. (Feb. 28, 2003) at 1. The District government
was ordered to: (1) notify, at least annually, dental care
providers of the Medicaid requirements; (2) require each
managed care organization to develop a corrective action plan;
and (3) mail, by April 15, 2003, to all households in the District
of Columbia with one or more Medicaid-eligible children a
written notice describing the dental benefits. The district court
also ordered the court-appointed monitor to prepare a report by
May 15, 2003 evaluating the effectiveness of these efforts.

Second, after the monitor filed his report on June 17, 2003
recommending improved strategies for the broader provision of
dental services, appellees again moved to enforce the Settlement
Order on April 23, 2004. Six months later, in view of its
conclusion the District government had violated Paragraph 36,
the district court ordered various remedial measures to increase
the rate at which children were receiving dental care. The
District government was ordered to: (1) develop a dental
periodicity schedule that complies with generally accepted
dental standards; (2) develop a corrective action plan for
ensuring that all Medicaid-eligible children receive dental
services, including increased provider participation, provider
training, and outreach; and (3) meet specific participation goals,
ranging from 70% to 85%, depending on age, no later than
September 30, 2007. Order of Oct. 18, 2004 (“the Dental
Order”).

The District government noted an appeal from the Dental
Order on November 16, 2004. On January 27, 2005, however,
it moved to hold the appeal in abeyance pending its filing a
motion in the district court to “dissolve” the Dental Order.
Then, on March 15, 2006, the District government moved to
dismiss the appeal, which motion was granted, see Order, No.
04-7200 (D.C. Cir. Mar. 15, 2006). The monitor had filed a
 5

report on January 27, 2006, pursuant to the district court’s order
of September 14, 2005, outlining strategies to enhance access to
dental care for Medicaid-eligible children and suggesting that
evidence from the several states and the standard of 57% set by
the U.S. Department of Health and Human Services indicated
that the Dental Order set unrealistic dental utilization rates and
should be reevaluated.

Four months later, on May 26, 2006, the District
government filed a motion to vacate the Dental Order on the
ground that the district court had exceeded its authority. The
District government argued: (1) the evidence did not support a
finding it had violated the Settlement Order by failing to provide
and arrange for appropriate dental services upon request; (2) the
remedial relief was not tailored to cure a constitutional or
federal law violation; (3) it was placed in the position of being
an insurer of dental care under an inequitable strict liability
standard; and (4) the relief “[v]astly [e]xceeds the [s]tandards set
by the [f]ederal and [l]ocal [a]gencies [a]dministering” the
Medicaid program for children’s medical care. Memorandum
of Points and Authorities in Support of Defendants’ Motion to
Vacate Order Granting Injunctive Relief Dated October 18, 2004
at 3–4, Salazar v. District of Columbia, No. 93-cv-452 (D.D.C.
May 26, 2006), ECF No. 1153. The motion did not reference
the monitor’s January 27, 2006 report although it referred to a
2000 report by the General Accounting Office indicating the
limited effect of payment increases on provider participation
that was also cited in the monitor’s report.

Additionally, in response to appellees’ opposition, the
District government argued that continued enforcement of the
Dental Order was unjust and that it was entitled to relief because
the Dental Order imposed obligations beyond those negotiated
by the parties, and under Rule 60(b)(6) the district court has “a
 6

large degree of discretion in granting relief.”1 Defendants’
Reply to Plaintiff’s Opposition to Defendants’ Motion to Vacate
the Court’s Injunction of October 18, 2004 at 5, Salazar v.
District of Columbia, No. 93-cv-452 (D.D.C. Sept. 12, 2006),
ECF No. 1219. The reply argued that the monitor’s January 27,
2006 report showed that the Dental Order’s requirement of an
80% participation rate by 2007 is (in the District government’s
words) “utterly unrealistic and may not be achievable at all.” Id.
at 6. It also noted “the lack of any direct evidence of any
member of the plaintiff class having been effectively denied
dental services to which they are entitled.” Id. at 7. It
concluded:

This is an extreme case, the Dental Order requires the
District [government] achieve a result that the Court’s
Monitor [h]as opined to be unachievable with tools the
Monitor has found unlikely to succeed. Rule 60(b)(6)
was designed for just such an occasion.

Id.

The district court denied the motion to vacate on February
18, 2010 (over 3 ½ years after it was filed). It ruled that the
motion was untimely because it was filed nineteen months after
the Dental Order was entered, noting the District government’s
“inexplicable delay.” Salazar v. District of Columbia, 685 F.
Supp. 2d 72, 75 (D.D.C. 2010). The district court concluded no
subsection of Rule 60(b) authorized the motion at this late date,
noting that Rule 60(b) required a motion to be filed within a
“reasonable time,”and that it is not a substitute for appeal. The

1
Although the District government’s reply also argued that
it was entitled to relief under Rule 60(b)(5), it states on appeal that it
relied only on Rule 60(b)(6). See Appellant’s Br. 11; Appellee’s Br.
21.
 7

district court concluded relief under Rule 60(b)(6) was
unwarranted because the District government had identified no
“exceptional or extraordinary circumstances.”2 Id. at 12. The
district court also rejected the challenge to its authority
inasmuch as the Dental Order enforces “with great specificity”
paragraphs 36, 49, 52, and 57 of the Settlement Order. Id. at
10–11. The district court observed that “[v]irtually all of the
legal arguments have previously been examined and rejected,”
and that the new argument — that the Dental Order required
relief in excess of federal standards — was not dispositive
because the Settlement Order embodied and held the parties to
their voluntary agreement, citing Frew ex rel. Frew v. Hawkins,
540 U.S. 431, 439 (2004). On May 26, 2010, the district court
denied the District government’s motion for a stay.

The District government appeals, contending that the
district court abused its discretion in denying the motion to
vacate as untimely and exceeded its authority by imposing
requirements in the Dental Order beyond the parties’ settlement
agreement.

II.

Federal courts “long ago established” that they “would not
alter or set aside their judgments after the expiration of the term
at which the judgments were finally entered.” Hazel-Atlas Glass
Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944) (citing
Bronson v. Schulten, 104 U.S. 410 (1881)), overruled on other

2
The district court also addressed relief under other
provisions of Rule 60(b) and Rules 52 and 59. See Salazar, 685 F.
Supp. 2d at 75–76. The District government’s states that none of these
rules were invoked by it in the district court, Appellant’s Br. 11;
accord Appellees’ Br. 13, and its brief on appeal does not address
them.
 8

grounds by Standard Oil Co. of Cal. v. United States, 429 U.S.
17, 18 & n.2 (1976). If the district court or court of appeals was
in the same term in which the challenged judgment was entered
“the judge ‘had plenary power . . . to modify his judgment for
error of fact or law or even revoke it altogether.’” United States
v. Beggerly, 524 U.S. 38, 42–43 (1998) (quoting Zimmern v.
United States, 298 U.S. 167, 169–70 (1936)). From the
beginning, however, there also was “a rule of equity to the effect
that under certain circumstances . . . relief will be granted
against judgments regardless of the term of their entry.” Id. But
to obtain such relief, “resort had to be made to a handful of
writs, the precise contours of which were ‘shrouded in ancient
lore and mystery.’” Id. at 43 (quoting FED. R. CIV. P. 60
advisory committee’s note on 1946 amendment).

The Supreme Court, in fashioning Rule 60(b), “took notice
of the fact that the terms of the district court may vary in length
and that the expiration of the term might occur very soon, or
quite a long time, after the entry of a judgment.” Hazel-Atlas
Glass, 322 U.S. at 255–56 (Roberts, J., dissenting). The Court
did not, however, disturb the equitable principles that embodied
prior practice. “Rule 60(b) does not provide a new remedy at
all, but is simply the recitation of pre-existing judicial power.”
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 234–35 (1995).

In 1938 the Court promulgated a uniform rule permitting a
motion to relieve a party from a judgment but requiring that the
motion be made “within a reasonable time, but in no case
exceeding six months after such judgment, order, or proceeding”
and only where the order or proceeding was taken “through [the
movant’s] mistake, inadvertence, surprise, or excusable
neglect.” FED. R. CIV. P. 60(b) (1938), reprinted in James Wm.
Moore & Elizabeth B.A. Rogers, Federal Relief from Civil
Judgments, 55 YALE L.J. 623, 632 (1946). Nonetheless, the
“salutary rule as to finality” was retained and, after six months
 9

the judgment, order, or proceeding could not be challenged
except by a proper collateral action. Hazel-Atlas, 322 U.S. at
256 (Roberts, J., dissenting).

In 1948, Rule 60(b) was amended to “grant[] courts a
broader power to set aside judgments than did the old rule.”
Klapprott v. United States, 335 U.S. 601, 609 (1949). The
amended rule established six grounds for relief, extended the
time limitation from six months to one year for the first three
grounds — excusable neglect, newly discovered evidence, and
fraud — and provided that the latter three — a void judgment;
a judgment that has been satisfied, relies upon a prior judgment
that has been reversed, or would be inequitable to have
prospective application; or for any other just reason — have no
specific time limit and need only be brought within a
“reasonable time.” Rule 60(b) remains virtually unchanged
since 1948.3 It has three important limitations: First, Rule 60(b)

3
Rule 60(b) was amended in 1987, but the advisory
committee notes describe the amendment as “technical” and that “[n]o
substantive change [was] intended.” FED. R. CIV. P. 60 advisory
committee’s note on 1987 amdt. Similarly, Rule 60(b) was amended
in 2007 “as part of the general restyling of the Civil Rules to make
them more easily understood and to make style and terminology
consistent throughout the rules. These changes [were] intended to be
stylistic only.” FED. R. CIV. P. 60 advisory committee’s note on 2007
amdt. The reference in the final sentence that relief is available by a
motion or independent action was “deleted as unnecessary.” Id. Rule
60(b)–(e), as presently constituted, reads:

(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve
a party or its legal representative from a final judgment, order,
or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
 10

includes a “requirement that the motion ‘be made within a
reasonable time’ and the more specific 1-year deadline for
asserting three of the most open-ended grounds of relief
(excusable neglect, newly discovered evidence, and fraud).”
Gonzalez v. Crosby, 545 U.S. 524, 534 (2005) (quoting FED. R.
CIV. P. 60(c)). Second, the Supreme Court cases have required
a movant seeking relief under Rule 60(b)(6) to show
“‘extraordinary circumstances’ justifying the reopening of a
final judgment.” Id. (quoting Ackermann v. United States, 340

could not have been discovered in time to move for a new
trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it
is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made within
a reasonable time--and for reasons (1), (2), and (3) no more
than a year after the entry of the judgment or order or the date
of the proceeding.
(2) Effect on Finality. The motion does not affect the
judgment’s finality or suspend its operation.
(d) Other Powers to Grant Relief. This rule does not limit
a court’s power to:
(1) entertain an independent action to relieve a party from a
judgment, order, or proceeding;
(2) grant relief under 28 U.S.C. § 1655 to a defendant who
was not personally notified of the action; or
(3) set aside a judgment for fraud on the court.
(e) Bills and Writs Abolished. The following are abolished:
bills of review, bills in the nature of bills of review, and writs
of coram nobis, coram vobis, and audita querela.
 11

U.S. 193, 199 (1950)). Finally, “Rule 60(b) proceedings are
subject to only limited and deferential appellate review.” Id.

A.
“Rule 60(b)(6) . . . grants federal courts broad authority to
relieve a party from a final judgment ‘upon such terms as are
just,’ provided that the motion is made within a reasonable time
and is not premised on one of the grounds for relief enumerated
in clauses (b)(1) through (b)(5).” Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 863 (1988). That is, its
provisions are “mutually exclusive” to the extent that subsection
(6) cannot be used to avoid the one-year limitation in
subsections (1)–(5), such that “a party who failed to take timely
action due to ‘excusable neglect’ [within one year] may not seek
relief more than a year after the judgment by resorting to
subsection (6).” Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 393 (1993). See also Twelve John
Does v. District of Columbia, 841 F.2d 1133, 1140 (D.C. Cir.
1988).

Rule 60(b)’s concern with finality, embodied originally in
the term rule, subsequently in the strict six-month rule, and now
in the “reasonable time” requirement, does not carry the same
significance in long-running equitable relief as it would in an
action where the court’s role had ended and the litigants relied
on the repose inherent in the end of litigation. As this court has
emphasized, “[t]he power of a court of equity to modify a decree
of injunctive relief . . . is long-established, broad, and flexible.”
United States v. W. Elec. Co., 46 F.3d 1198, 1202 (D.C. Cir.
1995) (quoting New York State Ass’n for Retarded Children, Inc.
v. Carey, 706 F.2d 956, 967 (2d Cir.) (Friendly, J.), cert. denied,
464 U.S. 915 (1983)). See generally CHARLES A. WRIGHT, ET
AL., FEDERAL PRACTICE & PROCEDURE § 2961 (2010).
Importantly, the Supreme Court observed:
 12

The upsurge in institutional reform litigation since
Brown v. Board of Education, 347 U.S. 483[ ] (1954),
has made the ability of a district court to modify a
decree in response to changed circumstances all the
more important. Because such decrees often remain in
place for extended periods of time, the likelihood of
significant changes occurring during the life of the
decree is increased.

Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 380
(1991) (emphasis added). The Court thus instructed that “a
flexible approach is often essential to achieving the goals of
reform litigation.” Id. at 381. More recently the Court observed
that “injunctions issued . . . often remain in force for many
years, and the passage of time frequently brings about changed
circumstances — changes in the nature of the underlying
problem, changes in governing law or its interpretation by the
courts, and new policy insights — that warrant reexamination of
the original judgment.” Horne v. Flores, 129 S. Ct. 2579, 2593
(2009). Although the motion in Rufo was not filed until ten
years after the entry of the consent decree, the Court never
questioned the timeliness of the Rule 60(b) motion.4 The only

4
The procedural setting in Rufo is instructive. It concerned
a 1971 challenge to double bunking of pretrial detainees. An
injunction was entered barring double bunking as unconstitutional,
and no appeal was taken. 502 U.S. at 373. When months passed
without action by the city, the district court ordered the commissioner
to transfer the detainees to other institutions; the court of appeals
affirmed. Id. at 373 n.2. When the problem remained unresolved as
of 1977, the district court ordered the city to renovate another facility
as a substitute; the court of appeals affirmed and ordered the jail
closed on October 2, 1978, unless a plan was presented to create a
constitutionally adequate facility. Id. at 374. On remand, a consent
decree was entered based on construction of a new jail with only
single occupancy cells. Id. at 375–76. One week after the district
 13

question was “whether a ‘significant change either in factual
conditions or in law’ rendered continued enforcement of the
judgment ‘detrimental to the public interest.’” Horne, 129 S. Ct.
at 2596–97 (quoting Rufo, 502 U.S. at 384).

Concluding that a motion to vacate the settlement order or
subsequent implementation orders, such as the Dental Order, are
subject to a strict time limit would run counter to the policies
underlying Rufo and its progeny. Rufo and Horne rejected a
“hardening” of the “traditional flexible standard” for
modification of injunctions and consent decrees. 502 U.S. at
379 (citing Carey, 706 F.2d at 968); 129 S. Ct. at 2594–95
(citing Rufo)). The circuits have likewise rejected “an unduly
strict” interpretation of the “reasonable time” requirement. See,
e.g., Associated Builders & Contractors v. Mich. Dep’t of Labor
and Economic Growth, 543 F.3d 275, 279 (6th Cir. 2008).
Prejudice to the opposing party, among others, is a relevant

court approved the consent decree, id. at 376, the Supreme Court
decided Bell v. Wolfish, 441 U.S. 520, 541 (1979), rejecting a
constitutional due process challenge to double-bunking for pretrial
detainees. Multiple delays attended the construction of the new
facility, which was still ongoing ten years later in 1989 when the
Sheriff moved to amend the consent decree to allow double bunking
based on changed circumstances: the intervening decision in Bell v.
Wolfish and the greater-than-anticipated increase in the size of the
pretrial detainee population. Id. at 376. The motion was denied and
affirmed on appeal. The Supreme Court reversed, holding the lower
courts had not applied the correct standard: “The experience of the []
Courts of Appeals in implementing and modifying such [consent]
decrees has demonstrated that a flexible approach is often essential to
achieving the goals of reform litigation.” Id. at 381 (citing Carey, 706
F.2d at 967, 969).
 14

factor.5 Moreover, the Seventh Circuit noted in

5
See, e.g., Lemoge v. United States, 587 F.3d 1188, 1196–97
(9th Cir. 2009) (“What constitutes ‘reasonable time’ [to bring a Rule
60(b)(1) motion] depends upon the facts of each case, taking into
consideration the interest in finality, the reason for delay, the practical
ability of the litigant to learn earlier of the grounds relied upon, and
prejudice to the other parties.”) (quoting Ashford v. Steuart, 657 F.2d
1053, 1055 (9th Cir. 1981)); Thompson v. Bell, 580 F.3d 423, 443 (6th
Cir. 2009) (“Whether the timing of the motion [pursuant to Rule
60(b)(6)] is reasonable ‘ordinarily depends on the facts of a given case
including the length and circumstances of the delay, the prejudice to
the opposing party by reason of the delay, and the circumstances
compelling equitable relief.’”) (quoting Olle v. Henry & Wright Corp.,
910 F.2d 357, 365 (6th Cir. 1990)); Farm Credit Bank of Baltimore v.
Ferrera-Goitia, 316 F.3d 62, 66 (1st Cir. 2003) (“The circumstances
to be considered [in assessing the timeliness of a Rule 60(b)(4)
motion] include the length of the delay, the justification for it, and the
prejudice (if any) associated with the granting of relief.”); Travelers
Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410, 1412 (5th Cir.
1994) (holding that reasonable time determination in the context of a
Rule 60(b)(6) motion “depends upon the particular facts and
circumstances of the case” and citing Ashford, 657 F.2d at 1055, for
the proposition that prejudice of other parties must be considered);
Schultz v. Commerce First Fin., 24 F.3d 1023, 1025 (8th Cir. 1994)
(“We consider the movant’s reason for delay [in bringing motion filed
under both Rule 60(b)(5) and Rule 60(b)(6)] and the existence of any
prejudice to the opposing party when determining a ‘reasonable
time.’”); Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 610 (7th
Cir. 1986) (describing timeliness for motion brought pursuant to Rule
60(b)(1) and 60(b)(6)) (quoting Ashford, 657 F.2d at 1055); Matter of
Emergency Beacon Corp., 666 F.2d 754, 760 (2d Cir. 1981) (“What
qualifies as a reasonable time [for bringing a Rule 60(b)(6) motion],
however, will ordinarily depend largely on the facts of a given case,
including the length and circumstances of the delay and the possibility
of prejudice to the opposing party.”); Sec. Mut. Cas. Co. v. Century
Cas. Co., 621 F.2d 1062, 1067 (10th Cir. 1980) (noting that lack of
prejudice to non-moving party due to delay in bringing Rule 60(b)(1)
 15

Shakman v. City of Chicago 426 F.3d 925, 934 (7th Cir. 2005),
that a district court deciding whether to modify or vacate “[a]
Consent Decree must take into account the nature of that
litigation as well as the resulting prejudice, if any, to the present
elected officials and the public they represent.”

Notably, this court has not identified a standard for
assessing “reasonable time” under Rule 60(b). It has, however,
considered prejudice to the non-moving party. In Expeditions
Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d
808, 810 (D.C. Cir. 1974), for instance, the court stated that a
district court may vacate and reenter a judgment under Rule
60(b)(6) to allow a timely appeal “when neither party had actual
notice of the entry of judgment, when the winning party is not
prejudiced by the appeal, and when the losing party moves to
vacate the judgment within a reasonable time after he learns of
its entry. This holding was reaffirmed in In re Sealed Case
(Bowles), 624 F.3d 482, 487–88 (D.C. Cir. 2010). Likewise, in
Jackson v. Jackson, 276 F.2d 501, 504 (D.C. Cir. 1960) [Rule
60(b)(5)] the court concluded that where “[n]o intervening rights
of [the non-moving party] appear to have been prejudiced . . .
[t]he time accordingly was reasonable.” Accord Erick Rios
Bridoux v. E. Air Lines, Inc., 214 F.2d 207, 209 & n.3 (D.C. Cir.
1954).

A litigant’s diligence in pursuing review of a decision,
either through appeal or through Rule 60(b)(6) relief, is relevant
in assessing whether extraordinary circumstances are present.
See Gonzalez, 545 U.S. at 537. In a complex and long-running
institutional reform case such as this, however, it would be an
abuse of discretion to rule that a Rule 60(b)(6) motion is not
filed within a reasonable time without finding that the movant’s

and 60(b)(6) motion constituted a factor in favor of finding that
motion was brought within a reasonable time).
 16

delay has prejudiced the non-moving party. In the instant case,
there is not only no finding of prejudice, there has been no
allegation of prejudice by appellees either before this court or
the district court. Appellees’ argument in the district court was
limited to stating that the District government had “submitted no
reasons for the delay in bringing th[e] motion” and that a
“motion brought over 20 months after entry of the Dental Order
is clearly untimely.” Plaintiffs’ Opposition to Defendants’
Motion to Vacate the Court’s Order Granting Injunctive Relief
Dated October 18, 2004 at 14, Salazar v. District of Columbia,
No. 93-cv-452 (D.D.C. July 7, 2006), ECF No. 1171. Indeed, it
appears from a lengthy notation in the district court’s
memorandum opinion explaining its delay in ruling on the
motion to vacate that the delay was caused in considerable part
by cooperative efforts among the parties and the monitor to
resolve the difference between appellees and the District
government, with the strong encouragement of the court,
Salazar, 685 F. Supp. 2d at 74 n.2, without the necessity of a
motion to vacate or a court order. In the period between entry
of the Dental Order and the filing of the motion to vacate, the
district court held nine status conferences with all of the parties.
Also of note, and belying any notion that the parties had reached
a period of repose, during the same period appellees filed nine
and the District government filed two opposed motions.
Moreover, in ruling that the District government’s motion was
untimely, the district court made no mention of the monitor’s
recent filing of a report on January 27, 2006, four months prior
to the District government’s filing the motion to vacate, despite
the fact that the report offered “new policy insights,” Horne, 129
S. Ct. at 2593, from a third party regarding the achievability of
the dental utilization rates mandated by the Dental Order. Under
the circumstances, appellees cannot have relied to their
detriment on the repose afforded by the Dental Order, and an
apparent decision by the District government to allow that order
to stand. Because there is no argument of prejudice caused by
 17

the timing of the District government’s moving to vacate the
Dental Order, the district court abused its discretion in ruling
that the motion was not brought within a reasonable time.

B.
The phrase “extraordinary circumstances” does not appear
in the text of Rule 60(b)(6), but the Supreme Court has added
this gloss to the rule. The Supreme Court’s earliest
interpretations of the 1948 amendment that created Rule
60(b)(6) came in a pair of cases: Klapprott v. United States, 335
U.S. 601 (1949), and Ackermann v. United States, 340 U.S. 193
(1950). Both concerned naturalized German immigrants whose
United States citizenship was withdrawn due to conduct
preceding or during World War II. In Klapprott, the petitioner
was served with a complaint for denaturalization and notice to
respond within sixty days, but was arrested on criminal charges
ten days later and a judgment by default was entered in the
denaturalization action. 335 U.S. at 602–03. In Ackermann,
three German immigrants represented by counsel answered a
complaint for denaturalization and one appealed the district
court judgment against all three and gained a reversal. 340 U.S.
at 195–96. Ackermann and his wife did not appeal, purportedly
on the ground that they lacked funds to appeal and on the advice
of an assistant commissioner at the Immigration and
Naturalization Department that because they were “stateless”
they would be released into the United States after the war. Id.
at 196.

In Klapprott, the Court noted that because the Rule 60(b)
motion was brought more than one year after the
denaturalization judgment, the petitioner needed to allege more
than mere “excusable neglect.” 335 U.S. at 613. The Court held
Rule 60(b)(6) to be applicable because the petitioner, at the time
of his denaturalization hearing, was being held in jail by the
 18

United States, “his adversary in the denaturalization
proceedings.” Id.

The basis of his petition was not that he had neglected
to act in his own defense, but that in jail as he was,
weakened from illness, without a lawyer in the
denaturalization proceedings or funds to hire one,
disturbed and fully occupied in efforts to protect
himself against the gravest criminal charges, he was no
more able to defend himself in the [denaturalization
proceedings] than he would have been had he never
received notice of the charges.

Id. at 614.

By contrast, in Ackermann the Court found unavailing the
petitioner’s argument that the denaturalization judgment was
erroneous, that the petitioner was without any funds and under
threat of losing his home, and that a government officer had
apparently misled him. The focus of the Court in Ackermann
was the fact that petitioner had a “duty to take legal steps to
protect his interest in litigation” by appealing. 340 U.S. at 197.
The Court deemed the petitioner to have “made a considered
choice not to appeal” and he could not “be relieved of such a
choice because hindsight seems to indicate to him that his
decision not to appeal was probably wrong.” Id. at 198. The
Court distinguished Klapprott as being a case of “extraordinary
circumstances,” i.e., a case in which the petitioner “was
deprived of any reasonable opportunity to make a defense . . . by
officers of the very United States agency” that brought the
denaturalization proceeding. Id. at 199–200. The difference
between Klapprott and Ackermann, the Court concluded, was
“between no choice and choice” and “no chance for negligence
and inexcusable neglect.” Id. at 202. Thus, if the movant had
 19

an opportunity for appeal and forwent that appeal, “[s]ubsection
(6) of Rule 60(b) has no application.” Id.

The Supreme Court has not retreated from this restrictive
understanding of Rule 60(b)(6). In Liljeberg, the Court treated
the phrase “extraordinary circumstances” as a requirement for
relief under Rule 60(b)(6), 486 U.S. at 863–64 & n.11, and its
requirements continue as part of Ackermann’s progeny. See, e.g.,
Gonzalez, 545 U.S. at 537; cf. Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993) .

This court, in turn, has emphasized that Rule 60(b)(6)
“‘should be only sparingly used’ and may not ‘be employed
simply to rescue a litigant from strategic choices that later turn out
to be improvident.’” Kramer v. Gates, 481 F.3d 788, 792 (D.C.
Cir. 2007) (quoting Good Luck Nursing Home, Inc. v. Harris, 636
F.2d 572, 577 (D.C. Cir. 1980)). Interpreting the line of cases
beginning with Klapprott and Ackermann, the court explained that
“a more compelling showing of inequity or hardship is necessary
to warrant relief under subsection (6) than under subsection (5);
otherwise, the ready availability of subsection (6) would make
meaningless the limitation of subsection (5) to judgments with
prospective application.” Twelve John Does, 841 F.2d at 1140.
Further, “a party who has not pursued an appeal may obtain relief
under Rule 60(b)(6) only if there are . . . ‘circumstances . . . so
extraordinary as to bring [the movant] within Klapprott or Rule
60(b)(6),’ i.e., circumstances that essentially made the decision
not to appeal an involuntary one.” Id. at 1141 (quoting
Ackermann, 340 U.S. at 202) (internal citation omitted)). The
court has understood “Ackermann [to] prohibit[] a court from
utilizing Rule 60(b)(6) to relieve a party from a voluntary
dismissal based only on financial hardship,” Randall v. Merrill
Lynch, 820 F.2d 1317, 1321 (D.C. Cir. 1987), although the court
has allowed relief when a litigant suffered from a disabling
illness, where participation in litigation would cause greater
 20

disability, and where the illness had depleted the litigant’s
financial resources, because “this combination of health and
financial considerations was sufficient to permit relief under Rule
60(b)(6),” id. (emphasis in original). It has also held that there
were “extraordinary circumstances” warranting Rule 60(b)(6)
relief where an attorney was “grossly negligent,” a circumstance
not at issue here. L.P. Steuart, Inc. v. Matthews, 329 F.2d 234,
235–36 (D.C. Cir. 1964). Accord Community Dental Servs. v.
Tani, 282 F.3d 1164, 1168–69 (9th Cir. 2002); Shepard Claims
Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 195 (6th
Cir. 1986); Boughner v. Sec’y of Health, Educ. & Welfare, 572
F.2d 976, 978 (3d Cir. 1978).

The District government relies on Good Luck Nursing Home,
636 F.2d at 574. In that case, a nursing home sought
reimbursement from the U.S. Department of Health, Education,
and Welfare for legal and account expenses in connection with its
administration of the Medicare program. The district court
granted summary judgment to the nursing home but reconsidered
three months later when the government revealed, by motion filed
pursuant to Rule 60(b)(6), that the expenses in question were
incurred in defending a civil action against the nursing home in
which Medicare fraud and overpayment had been alleged. Id.
This court affirmed:

When a party timely presents a previously undisclosed
fact so central to the litigation that it shows the initial
judgment to have been manifestly unjust,
reconsideration under [R]ule 60(b)(6) is proper even
though the original failure to present that information
was inexcusable.

Id. (internal citations omitted). Applying this rule in Computer
Professionals for Social Responsibility v. U.S. Secret Service, 72
F.3d 897 (D.C. Cir. 1996), the court held that Rule 60(b)(6) relief
 21

was warranted where the government presented new information
on the confidentiality of documents that the district court had
originally ordered released by the Secret Service under the
Freedom of Information Act. The government provided this
information within eighteen days of the order granting access to
requested documents. Relief was warranted in view of the
interests of the Secret Service and the protected interest in
confidentiality that belonged to a third party source and was
“central to the litigation.” Id. at 903.

It is unnecessary to decide whether the rule of Good Luck
Nursing Home and Computer Professionals survives the Supreme
Court’s decision in Gonzalez emphasizing that a “lack of
diligence” effectively precludes a finding of “extraordinary
circumstance.” 545 U.S. at 537. Regardless of the court’s
holdings in Good Luck Nursing Home and Computer
Professionals, the Supreme Court’s holdings in Ackermann and
Gonzalez that a lack of diligence will preclude a finding of
extraordinary circumstances control the outcome of this appeal.
Rule 60(b)(6) relief is not a “substitute for appeal,” Polites v.
United States, 364 U.S. 426, 432 (1960); Twelve John Does, 841
F.2d at 1141; Gilmore v. Hinman, 191 F.2d 652, 653 (D.C. Cir.
1951). The District government made a “considered choice,”
Ackermann, 340 U.S. at 198, by noting an appeal and then moving
to dismiss its appeal.

Furthermore, neither Good Luck Nursing Home nor
Computer Professionals involved judgments providing for
prospective relief. One sought money for services rendered; the
other sought the release of documents. By contrast, the District
government sought vacatur of the Dental Order arising under a
Settlement Order having prospective application. Where the
claim is that the application of an order is prospectively
inequitable, Rule 60(b)(5) is available. See Agostini v. Felton,
521 U.S. 203, 239 (1997); Hall v. CIA, 437 F.3d 94, 101 (D.C.
 22

Cir. 2006); Twelve John Does, 841 F.2d at 1138–40; see also
Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18
How.) 421 (1856).6 It is where a judgment has no prospective
application and the neglect is inexcusable that Rule 60(b)(6)
provides the only avenue for relief. Agostini, 521 U.S. at 239.

Accordingly, we affirm the order denying the District
government’s motion to vacate the Dental Order pursuant to Rule
60(b)(6) in the absence of the requisite extraordinary
circumstances. The District government is not without remedies,
however. Paragraph 71 of the Settlement Order provides for
modification “at any time for any reason.” The District
government’s legal argument may present a jurisdictional
argument cognizable under Rule 60(b)(4), while its impossibility
argument may be raised under Rule 60(b)(5).

6
To the extent the District government contends that certain
aspects of the Dental Order are impossible or impractical to achieve
and it is inequitable for the Dental Order to have any prospective
application, then its motion may be brought under Rule 60(b)(5),
which “permits a party to obtain relief from a judgment or order if,
among other things, ‘applying [the judgment or order] prospectively
is no longer equitable.’” Horne, 129 S. Ct. at 2593.