Aikens v. Ingram

ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

FREDERICK AIKENS, 
Plaintiff-Appellant,
v.
WILLIAM E. INGRAM, JR.,
individually and in his capacity as
Adjutant General of the North
Carolina Army National Guard;
PETER VON JESS, individually and in
his capacity as Lieutenant Colonel  No. 08-2278
of the North Carolina National
Guard; BRIAN MCCARTHY,
individually and in his capacity as
a member of the North Carolina
Army National Guard; PAUL JONES,
individually and in his capacity as
a member of the North Carolina
Army National Guard,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Dever III, District Judge.
(5:06-cv-00185-D)

Argued: March 24, 2011

Decided: July 13, 2011
2 AIKENS v. INGRAM
Before TRAXLER, Chief Judge, and WILKINSON,
NIEMEYER, MOTZ, KING, GREGORY, SHEDD,
DUNCAN, AGEE, DAVIS, KEENAN, and DIAZ,
Circuit Judges.1

Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Judges Wilkinson,
Shedd, Duncan, Agee, and Diaz joined. Judge Diaz wrote a
concurring opinion in which Judges Shedd, Duncan, and Agee
joined. Judge King wrote a dissenting opinion in which
Judges Motz, Gregory, Davis, and Keenan joined. Judge
Davis wrote a separate dissenting opinion.

COUNSEL

ARGUED: William Woodward Webb, Sr., EDMISTEN &
WEBB, Raleigh, North Carolina, for Appellant. John Foster
Maddrey, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellees. ON BRIEF:
William Woodward Webb, Jr., EDMISTEN & WEBB,
Raleigh, North Carolina, for Appellant. Roy Cooper, North
Carolina Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

1
Judge Wynn did not sit with the en banc court or participate in this
decision.
 AIKENS v. INGRAM 3
OPINION

NIEMEYER, Circuit Judge:

Frederick Aikens, formerly a colonel in the North Carolina
Army National Guard, commenced this action against his for-
mer colleagues, Adjutant General William Ingram and Lieu-
tenant Colonel Peter von Jess, alleging that they violated his
Fourth Amendment rights by wrongfully intercepting, read-
ing, and forwarding his e-mails while he was deployed in
Kuwait. The district court dismissed the action without preju-
dice, concluding that it lacked subject matter jurisdiction
because of Colonel Aikens’ failure to exhaust any available
intra-military remedies. The court entered a judgment of dis-
missal on September 14, 2007.

Although Colonel Aikens held the firm belief that the dis-
trict court had erred, he did not appeal, nor did he seek a stay
to assure the district court’s continuing jurisdiction over the
matter. Aikens did file his claim with the Army Board for
Correction of Military Records ("ABCMR"), but then, when
the Board determined that it could not provide him with the
relief that he sought, he did not file another action in the dis-
trict court. Rather, he sought to reopen the September 14,
2007 judgment by filing a motion for relief from judgment
under Federal Rule of Civil Procedure 60(b)(6), several
months after that action had become final and unappealable.
The district court denied the Rule 60(b)(6) motion in the exer-
cise of its discretion, reasoning that Colonel Aikens had failed
to establish the extraordinary circumstances necessary under
Rule 60(b)(6) for granting relief from the September 14, 2007
judgment.

For the reasons that follow, we conclude that the district
court did not abuse its discretion and thus affirm.

I

After Frederick Aikens was promoted to colonel in the
North Carolina Army National Guard, Lieutenant Colonel
4 AIKENS v. INGRAM
Peter von Jess was selected to replace him as executive officer
of the 139th Rear Operations Center. Shortly thereafter, Colo-
nel Aikens began receiving complaints about von Jess from
subordinate field officers, leading Aikens to discipline von
Jess in a July 2002 officer evaluation report. Aikens reiterated
that evaluation in a December 2002 evaluation report. Adju-
tant General William Ingram, who had selected von Jess to
replace Aikens as executive officer, invalidated Colonel
Aikens’ evaluation of von Jess, which provoked Colonel
Aikens to file a complaint for undue command influence with
the Department of the Army Inspector General. The Inspector
General substantiated Aikens’ complaint.

According to Aikens, when he was later deployed to
Kuwait in April 2003, two of his subordinate officers, under
instructions from General Ingram, illegally monitored and
intercepted his personal e-mails from a computer system they
had set up for him. These e-mails contained personal corre-
spondence, including negative statements about General
Ingram and others.

Thereafter, General Ingram ordered two separate investiga-
tions of Aikens, one in December 2003 and another in Febru-
ary 2004, both of which were later determined to be
unsubstantiated. But Colonel Aikens was later notified by the
Inspector General that he was the subject of yet another inves-
tigation for a "hostile command climate and inappropriate
relations with women." These charges were substantiated in
part by use of the intercepted e-mails. Colonel Aikens asserts
that as a result of the third investigation he resigned from the
North Carolina National Guard in June 2005 and that his res-
ignation amounted to constructive discharge from the United
States Army. After his resignation, he was transferred to the
Retired Reserve.

Colonel Aikens commenced this action against General
Ingram and Lieutenant Colonel von Jess, contending that the
defendants violated his Fourth Amendment rights and Army
 AIKENS v. INGRAM 5
Regulation 380-19. General Ingram and Lieutenant Colonel
von Jess filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1), arguing that the district court lacked
subject matter jurisdiction because Colonel Aikens had failed
to exhaust his intra-service military remedies through the
ABCMR. Aikens responded, arguing that exhaustion was
unnecessary because the ABCMR could not address Fourth
Amendment violations and that General Ingram and Lieuten-
ant von Jess were, in any event, state actors, not a federal
agency subject to the ABCMR.

The district court granted the motion without prejudice,
directing Aikens to exhaust his intra-service administrative
remedies with the ABCMR. Aikens v. Ingram, 513 F. Supp.
2d 586 (E.D.N.C. 2007). The court noted that Colonel
Aikens’ complaint, in making his Fourth Amendment argu-
ment, relied on Army Regulation 380-19 and that the
ABCMR "has authority to ‘correct an error or remove an
injustice’ in plaintiff’s military record," id. at 591 (quoting 10
U.S.C. § 1552(a)(1)), and to "‘reinstate [plaintiff] in a compa-
rable active federal reserve status, restore his pay and order
compensatory back pay,’" id. (quoting Williams v. Wilson,
762 F.2d 357, 360 n.6 (4th Cir. 1985) (alteration in original)).
The court reasoned:

At bottom, plaintiff seeks to rescind the resignation
letter contained in his military record. In so doing, he
relies on the Fourth Amendment and on Army Regu-
lation 380-19. However, plaintiff’s "failure to
exhaust intraservice administrative remedies [makes]
his federal claim a nonjusticiable military contro-
versy."

Id. (quoting Williams, 762 F.2d at 360) (alterations in origi-
nal). Explaining that its dismissal without prejudice "grant[ed]
deference to the military to handle its own affairs," the court
stated that if the ABCMR had jurisdiction, the court would
later conduct judicial review of the administrative proceeding.
6 AIKENS v. INGRAM
But if the ABCMR did not have jurisdiction, the agency
would "take no action and [Aikens] [could] return to federal
court." Id. at 591-92.

Colonel Aikens contends that the district court was "indis-
putably wrong about exhaustion," but he elected not to appeal.2
Neither did Colonel Aikens ask the district court for a stay of
its dismissal order, a request he agreed at oral argument was
not barred. Rather, he "dutifully," as he asserts, pursued
administrative remedies before the ABCMR. The ABCMR
denied Aikens relief, writing in a letter to Colonel Aikens,
"Upon review it has been determined that your application
and the remedy you seek is not within the purview of the
ABCMR; therefore, it is returned without prejudice and with-
out action being taken by this Board."

On March 31, 2008, more than six months after the district
court entered its judgment of dismissal, Aikens returned to
court. Rather than filing a new action, he filed a motion for
relief from the September 14, 2007 judgment, pursuant to
Federal Rule of Civil Procedure 60(b)(6). He argued that the
judgment should be reopened because he had complied with
the court’s requirement that he exhaust his intra-service
administrative remedies. The district court denied the motion
on the ground that Colonel Aikens had failed to show the "ex-
traordinary circumstances" warranting relief from the judg-
ment under Rule 60(b)(6). Aikens v. Ingram, No. 5:06-cv-185-
D, 2008 WL 4831420 (E.D.N.C. Nov. 5, 2008). The court
noted that its judgment of dismissal without prejudice antici-
pated that Colonel Aikens would return to federal court
through the filing of a new action. See id. at *4. Although
Aikens failed to raise the issue in his Rule 60(b) motion, the
court further noted that Aikens apparently sought Rule 60(b)
relief because he might be faced with a statute of limitations
2
Even though we do not address the merits of the district court’s alleg-
edly erroneous judgment requiring exhaustion, we do observe that the law
on that issue was not entirely clear.
 AIKENS v. INGRAM 7
defense if he filed a new action. It observed, however, that
any limitations problem was the result of Aikens’ tactical
decisions not to seek administrative review earlier and to file
this action late in the limitations period. See id. at *5.

From the district court’s order denying Aikens’ motion for
relief from judgment under Federal Rule of Civil Procedure
60(b)(6), Aikens filed this appeal.

II

Federal Rule of Civil Procedure 60(b) authorizes a district
court to grant relief from a final judgment for five enumerated
reasons or for "any other reason that justifies relief." Fed. R.
Civ. P. 60(b)(6).3 While this catchall reason includes few tex-
3
Federal Rule of Civil Procedure 60(b) provides in full:
Grounds for Relief from a Final Judgment, Order, or Proceeding.
On motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or proceeding
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new
trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), mis-
representation, 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.
And Federal Rule of Civil Procedure 60(c)(1) provides:
Timing. A motion under Rule 60(b) must be made within a rea-
sonable 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.
8 AIKENS v. INGRAM
tual limitations, its context requires that it may be invoked in
only "extraordinary circumstances" when the reason for relief
from judgment does not fall within the list of enumerated rea-
sons given in Rule 60(b)(1)-(5). See Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 863 n.11, 864 (1988). As
Chief Justice Rehnquist noted in his separate opinion in
Liljeberg:

Rule 60(b) authorizes a district court, on motion and
upon such terms as are just, to relieve a party from
a final judgment, order, or proceeding for any "rea-
son justifying relief from the operation of the judg-
ment." However, we have repeatedly instructed that
only truly "extraordinary circumstances" will permit
a party successfully to invoke the "any other reason"
clause of § 60(b). This very strict interpretation of
Rule 60(b) is essential if the finality of judgments is
to be preserved.

486 U.S. at 873 (Rehnquist, C.J., dissenting) (citations omit-
ted). To give Rule 60(b)(6) broad application would under-
mine numerous other rules that favor the finality of
judgments, such as Rule 59 (requiring that motions for new
trial or to alter or amend a judgment be filed no later than 28
days after the entry of judgment); Rule 6(b)(2) (providing that
a court may not extend the time to file motions under Rules
50(b), 50(d), 52(b), 59(b), 59(d), 59(e), and 60(b)); and Fed-
eral Rule of Appellate Procedure 4(a) (requiring generally that
appeals be filed within 30 days after judgment).

We have thus required—in addition to the explicitly stated
requirements that the motion under Rule 60(b)(6) be filed on
"just terms" and within "a reasonable time"—that the party
filing the motion have a meritorious claim or defense and that
the opposing party not be unfairly prejudiced by having the
judgment set aside. See Nat’l Credit Union Admin. Bd. v.
Gray, 1 F.3d 262, 264 (4th Cir. 1993). And if the reason
asserted for the Rule 60(b)(6) motion could have been
 AIKENS v. INGRAM 9
addressed on appeal from the judgment, we have denied the
motion as merely an inappropriate substitute for an appeal.
See Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993
F.2d 46, 48 (4th Cir. 1993) (holding that the "voluntary, delib-
erate, free [and] untrammeled choice" not to appeal the origi-
nal judgment or order cannot establish a basis for Rule 60
relief (quoting Ackermann v. United States, 340 U.S. 193, 200
(1950) (alteration in original)); In re Burnley, 988 F.2d 1, 3
(4th Cir. 1992) ("A Rule 60(b) motion may not substitute for
a timely appeal"). See generally 11 Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2864, at 359-60 & n.25 (2d ed. 1995) (collecting
cases).

We review the district court’s ruling on a 60(b) motion for
abuse of discretion, see Browder v. Dir., Dep’t of Corrections
of Ill., 434 U.S. 257, 263 n.7 (1978); Nat’l Credit Union, 1
F.3d at 265, and "an appeal from denial of Rule 60(b) relief
does not bring up the underlying judgment for review,"
Browder, 434 U.S. at 263 n.7.

With these principles in hand, we now turn to Colonel
Aikens’ contention that the district court abused its discretion
in denying him relief from its prior judgment of dismissal
under Rule 60(b)(6).

III

Aikens asserts that he demonstrated extraordinary circum-
stances to reopen the September 14, 2007 judgment because
(1) "[a]fter dismissal, he dutifully sought exhaustion from the
ABMCR" and (2) he would "face a limitations defense" upon
filing a new claim. He maintains that his predicament was
"caused by the district court’s erroneous exhaustion require-
ment" and that he is therefore entitled to relief from the erro-
neous judgment.4 Alternatively, he argues that the district
4
Aikens also argues that when the district court stated that he could "re-
turn to federal court" if the ABCMR did not have jurisdiction, it somehow
10 AIKENS v. INGRAM
court should have treated his Rule 60(b)(6) motion as a new
complaint that commenced a new action rather than deny it
outright. On his observation that the defendants would likely
have filed a statute of limitations defense against any new
complaint that he might have filed, Aikens speculates:

Appellees will argue that the limitations period
began to run on November 24, 2003, when Col.
Aikens became aware of the claim. A three year lim-
itations period applies to Col. Aikens’s claim. Col.
Aikens timely filed his case in the district court on
April 27, 2006, tolling the limitations period with
212 days left. But Appellees will argue that the limi-
tations period began to run again on September 13,
2007, when the district court dismissed the claims
for failure to exhaust and that the limitations period
never was tolled again.

(Internal citations omitted).

In the circumstances, we conclude that the district court did
not abuse its discretion in finding that Aikens did not demon-
strate the "extraordinary circumstances" necessary to employ
Rule 60(b)(6) as a bypass around routinely available proce-
dures, particularly when his failure to use those procedures
was the product of his strategic litigation choices. There were
multiple procedural mechanisms that Aikens could have used
to pursue his claim.

First, if Aikens was convinced that the district court erred
in dismissing his action for failure to exhaust administrative
remedies, as he apparently was, he should have appealed, but

made him a promise that he would succeed on his Rule 60(b)(6) motion.
However, we refuse to construe this invitation-to-return language as any-
thing other than the district court’s explanation for dismissing his action
without prejudice.
 AIKENS v. INGRAM 11
he did not. As he reiterates in his brief, "the district court was
indisputably wrong about exhaustion, and Col. Aikens consis-
tently argued to the district court that exhaustion was not
required." The obvious procedure to follow was to appeal the
judgment by filing a notice of appeal within 30 days of the
September 14, 2007 judgment. This court has repeatedly rec-
ognized that a Rule 60(b) motion is not designed to serve as
an alternative for an appeal. For example, in Dowell, we held
that the district court did not abuse its discretion in denying
a motion for relief from judgment based on a change in gov-
erning state law, because the petitioner did not appeal the
original district court decision. Dowell, 993 F.2d at 48 (citing
Ackermann, 340 U.S. at 198). In cases where the petitioner
freely chooses not to appeal the district court’s original judg-
ment, this court has consistently held that the petitioner had
not demonstrated extraordinary circumstances. Id.; Burnley,
988 F.2d at 3; cf. Hall v. Warden, 364 F.2d 495, 496 (4th Cir.
1966) (en banc) (refusing to vacate final judgment on grounds
that district court erred in light of later Supreme Court deci-
sion). In short, Rule 60(b)(6) does not serve as a substitute for
appeal. It is the office of appeal that is designed to correct
perceived errors, and any appeal is governed by an indepen-
dent set of rules and time considerations. See, e.g., Fed. R.
App. P. 4(a)(1) (providing, with exceptions, that a notice of
appeal must be filed "within 30 days after the judgment or
order appealed from is entered").

Second, Aikens could have asked the district court to stay
the action pending exhaustion of administrative remedies, but
again he did not, failing to recognize that such a stay would
be an appropriate exercise of the district court’s discretion.
We have readily ordered a stay of an ongoing federal action
pending exhaustion of administrative or state proceedings,
particularly to avoid statute of limitations problems. See, e.g.,
Traverso v. Penn, 874 F.2d 209, 212-13 (4th Cir. 1989)
(requiring a stay rather than dismissal of § 1983 action to
allow for exhaustion of pending state proceedings); Suggs v.
Brannon, 804 F.2d 274, 279-80 (4th Cir. 1986) (abstaining
12 AIKENS v. INGRAM
from § 1983 claim due to ongoing state prosecution, but
ordering a stay rather than dismissal because of statute of lim-
itations problem); Stubbs v. Foley, No. 92-7164, 998 F.2d
1010, 1993 WL 261975 at *2 (4th Cir. July 2, 1993) (unpub-
lished) (vacating dismissal for failure to exhaust and remand-
ing with order to stay pending exhaustion due to concern
about a potential statute of limitations problem). And if the
district court refused a stay, he could have appealed and
requested a stay from us. See id.

Third, after exhausting administrative remedies, Aikens
could have filed a new action, rather than seeking relief from
a months-old judgment or claiming that the district court
should have treated his Rule 60(b)(6) motion as a new action.
At oral argument, Aikens’ counsel conceded that had he filed
a new action instead of a Rule 60(b)(6) motion, it would have
been timely filed and not subject to a statute of limitations
defense. Because counsel made the choice to file a Rule
60(b)(6) motion, the district court reasonably found that
Aikens had not demonstrated "extraordinary circumstances"
to justify granting a Rule 60(b)(6) motion.

In short, Aikens’ posited predicament was as much the
result of his management of the action and his litigation strat-
egy choices as it was the result of the district court’s errone-
ous judgment of dismissal. Moreover, he did not demonstrate
that his posited limitations predicament was anything more
than speculation. It is not clear when Aikens’ cause of action
accrued, and Aikens’ counsel agreed that he did not know
what tolling provisions might apply or how they might apply.

The district court concluded that Aikens cannot "avoid the
statute of limitations problem he now faces by deft use of
Rule 60(b)(6). Stated simply, ‘extraordinary circumstances’
do not arise due to time limitations that otherwise apply, and
a plaintiff cannot use Rule 60(b)(6) to evade such time limita-
tions." Aikens, 2008 WL 4831420, at *5. We cannot find that
the district court’s conclusion was an abuse of discretion.
 AIKENS v. INGRAM 13
Indeed, it is consistent with the Supreme Court’s similar con-
clusion in Ackermann, where the petitioner decided not to
appeal for tactical reasons. As the Court stated:

Petitioner made a considered choice not to appeal,
apparently because he did not feel that an appeal
would prove to be worth what he thought was a
required sacrifice of his home. His choice was a risk,
but calculated and deliberate and such as follows a
free choice. Petitioner cannot be relieved of such a
choice because hindsight seems to indicate to him
that his decision not to appeal was probably wrong
. . . . There must be an end to litigation someday, and
free, calculated, deliberate choices are not to be
relieved from.

Ackermann, 340 U.S. at 198.

IV

In the alternative, Aikens argues that the district court
should have treated his Rule 60(b)(6) motion as a complaint
commencing a new action, citing Miller v. Norris, 247 F.3d
736 (8th Cir. 2001). This is an extraordinary argument for him
to make since he acknowledges that he made a choice not to
file a new action and that he never asked the district court to
treat his Rule 60(b)(6) motion as a new complaint. Had
Aikens made that request, the court surely would have
instructed him to file the complaint, not the Rule 60(b)(6)
motion.

The holding in Miller provides meager support for his posi-
tion. In Miller, a pro se inmate filed a "Motion to Reinstate
Cause," complaining about prison conditions. The Eighth Cir-
cuit, giving the inmate, who was not a lawyer, the benefit of
a liberal construction, treated the inmate’s motion to reinstate
"cause" as a complaint stating the "cause." Miller, 247 F.3d
at 739.
14 AIKENS v. INGRAM
Aikens’ circumstances are not similar. While the inmate in
Miller apparently sought to file a "cause," Aikens’ Rule
60(b)(6) motion was filed to vacate a final judgment. In addi-
tion, courts construe pro se motions liberally, which the dis-
trict court was not required to do for Aikens in this case
because he was represented by counsel at all times. Finally,
we cannot find that the district court abused its discretion in
not, sua sponte, treating Aikens’ Rule 60(b)(6) motion as a
new complaint, when Aikens deliberately refrained from mak-
ing such a request himself.

V

In the circumstances of this case, we cannot conclude that
the district court abused its discretion in denying Aikens’
March 31, 2008 motion to reopen the September 14, 2007
judgment under Federal Rule of Civil Procedure 60(b)(6).

AFFIRMED

DIAZ, Circuit Judge, concurring:

I am pleased to join in full Judge Niemeyer’s well-reasoned
majority opinion. I write separately to address a few of the
contentions raised by my dissenting colleagues.

At a global level, I am concerned by the dissenters’ appli-
cation of the abuse-of-discretion standard, which all agree is
the prism through which we must measure the district court’s
action in this case. The principal dissent authored by Judge
King posits that the en banc majority would readily consent
that the district court "certainly had the discretion" to grant
Aikens’s Rule 60(b)(6) motion without fear of reversal. Post
at 29-30. It then argues that the district court abused its discre-
tion because "it could—and should—have found the ‘extraor-
dinary circumstances’ necessary to grant Aikens’s motion"
 AIKENS v. INGRAM 15
and criticizes the majority for "standing on ceremony" in
affirming denial of the motion. Id. at 40.*

Yet inherent in the deferential abuse-of-discretion standard
is an overarching command of "judicial restraint, which . . .
safeguard[s] the superior vantage points of those entrusted
with primary decisional responsibility." Evans v. Eaton Corp.
Long Term Disability Plan, 514 F.3d 315, 320–21 (4th Cir.
2008). When reviewing a lower court decision for abuse of
discretion, words like "could" and "should" are not part of our
judicial lexicon. Indeed, the standard "requires a reviewing
court to show enough deference to a primary decision-
maker’s judgment that the court does not reverse merely
because it would have come to a different result in the first
instance." Id. at 322. Ever cognizant that our evaluation in
such a case is "only a posterior check on judgment which
strays too far from the mark," we must further realize that the
abuse-of-discretion standard "draws a line . . . between the
unsupportable and the merely mistaken." Id. Reversal is
appropriate only in the former case.

Were I the district judge in this case, I might well have
reached a conclusion different from that below and granted
Aikens’s Rule 60(b)(6) motion. And if I did so, my opinion
likely would have resembled the principal dissent. Once a
case reaches our court, however, the applicable standard of
review often forecloses us from substituting our judgment for
that of the district court. While the principal dissent convinc-
ingly demonstrates that the district court could have granted
Aikens’s motion, it fails to establish that failure to grant the

*Judge Davis appears to venture even farther than the principal dissent,
urging in his dissent that we adopt a sliding-scale approach where the
amount of deference accorded district judges fluctuates based on how
much appellate judges like the result. Standards of review, however, as the
very bedrock of our decision-making authority, must mean something.
And review for abuse of discretion must not be converted into de novo
review, even though our personal views about the underlying judgment
may tempt us so.
16 AIKENS v. INGRAM
motion was so beyond the pale that it constitutes an abuse of
discretion. The dissenters’ view of the appropriate standard
comes perilously close to endorsing a system where this court
zealously accords deference to district judges—but only when
they reach the decisions that we would have reached in the
first instance.

Turning to the Rule 60(b)(6) motion itself, the principal
dissent posits that the requisite "extraordinary circumstances"
are present here. It relies primarily on four cases to support
this contention, but none has persuasive value under the cir-
cumstances of this case. In Compton v. Alton Steamship Co.,
608 F.2d 96 (4th Cir. 1979), we reversed a district court’s
denial of a litigant’s Rule 60(b) motion. The moving party
there, however, could not have appealed entry of a default
judgment. Id. at 104 n.14. Thus, we treated the motion as a
substitute for the otherwise-unavailable appeal, noting that the
litigant had filed the motion within ten days of judgment. Id.
at 100, 104 & n.14. In contrast, nothing barred Aikens from
appealing the initial exhaustion ruling, rendering Compton
inapposite.

The principal dissent finds a single decision in which this
court has reversed denial of a Rule 60(b)(6) motion where
appellate review was available and the moving party failed to
appeal. See White v. Investors Mgmt. Corp., 888 F.2d 1036
(4th Cir. 1989). White, too, is readily distinguishable from this
case, as there the district court entered judgment without
notice to either party and without a hearing "even though
there was an outstanding order compelling the defendant . . .
to produce a critical document in the determination of the
case." Id. at 1040. We excused the plaintiff’s failure to appeal
because he moved quickly—within the ordinary thirty-day
postjudgment window—to file his Rule 60(b)(6) motion. Id.
at 1040–41. Aikens here proffers no similarly troubling due
process concerns, and his motion was not timely filed, reach-
ing the court over six months after the initial judgment was
rendered and almost two months after the ABCMR decision.
 AIKENS v. INGRAM 17
A summary sketch of the other cases relied on by the prin-
cipal dissent demonstrates their inutility here. The decision in
Whitmore v. Avery, 179 F.R.D. 252 (D. Neb. 1998), was ani-
mated by the need to show leniency to pro se prisoners, "bi-
zarre changes" occurring throughout the pendency of the case,
"exceptional turns and events" of the litigation, and "the
morass that is habeas corpus jurisprudence." Id. at 253–59 &
259 n.4. Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009),
involving a habeas petitioner on death row, similarly presents
factors not present here—namely, the need to balance "the
finality of the judgment against Thompson . . . against the
more irreversible finality of his execution," id. at 444. Far
from compelling this court to find "extraordinary circum-
stances" here, precedent fails even to support our extension of
the term to the events of this case.

The principal dissent asserts that "Aikens selected the obvi-
ous and . . . efficient option" in choosing to forgo appeal of
the exhaustion ruling and proceed straight to the ABCMR.
Post at 22. This assertion is puzzling, though, given the prin-
cipal dissent’s claim that the district court’s exhaustion ruling
was "demonstrably wrong." Id. at 20. Perhaps recognizing
this asymmetry, the principal dissent in a later footnote
explains that "[this court] might instead have affirmed [on
appeal] and Aikens would have ended up before the ABCMR
anyway." Id. at 32 n.9. But the principal dissent cannot have
it both ways. Either the district court’s exhaustion ruling was
patently erroneous, in which case Aikens’s failure to appeal
cannot be excused. Or the district court’s exhaustion ruling
was reasonable, critically weakening the principal dissent’s
"extraordinary circumstances" argument.

The principal dissent next contends that Supreme Court
precedent compelled the district court to identify a possible
statute-of-limitations issue and sua sponte enter a stay after
concluding that Aikens must exhaust his administrative reme-
dies. In so doing, it reads Supreme Court precedent a bit too
broadly. The Supreme Court has indeed confirmed that "a
18 AIKENS v. INGRAM
federal court [is permitted] to stay proceedings in a case prop-
erly before it while awaiting the decision of another tribunal."
United States v. Mich. Nat’l Corp., 419 U.S. 1, 4 (1974)
(emphasis added). And the Court has at least once ordered
entry of a stay when a party has argued that the applicable
statute of limitations may bar refiling of a claim after agency
action. Carnation Co. v. Pac. Westbound Conference, 383
U.S. 213, 222 (1966).

I doubt the applicability of Carnation to this case, as it
dealt with a tightly cabined antitrust claim in the context of
the doctrine of primary jurisdiction. See Guam v. Am. Presi-
dent Lines, 28 F.3d 142, 149 n.11 (D.C. Cir. 1994) (express-
ing skepticism about propriety of reading Carnation to
endorse general proposition that, "where rights would be lost
as a result of a statute of limitations bar, the district court
must retain jurisdiction [after referring case to agency] in
order to toll the limitations period"). And, in any event, Car-
nation and the Supreme Court cases relied on by the principal
dissent include crucial elements missing from Aikens’s chal-
lenge. All were direct appeals from an exhaustion ruling, and
in each the parties brought the statute-of-limitations issue to
the attention of the court. Neither the Supreme Court nor this
court has ever even intimated that a district court must search
the record for possible statute-of-limitations problems and sua
sponte enter a stay after determining that a plaintiff has not
exhausted his administrative remedies.

Turning to the possible statute-of-limitations bar confront-
ing Aikens, the principal dissent posits that the district court
in its denial of Aikens’s Rule 60(b)(6) motion "contradicted
its assertion [in the exhaustion ruling] that its dismissal did
not foreclose a new action, opining that the statute of limita-
tions . . . had likely expired well before the dismissal was
even entered." Post at 24 n.5. "Surprisingly," writes the prin-
cipal dissent, "the court blamed Aikens, rather than itself, for
creating the statute of limitations issue." Id. Yet it is not the
role of the district court to act as a roving advocate, providing
 AIKENS v. INGRAM 19
legal arguments to the parties before it. No one raised the pos-
sible statute-of-limitations issue during the exhaustion dis-
pute, and the district court certainly was not obligated to scour
the record for possible defenses that could be asserted if the
suit was refiled upon exhaustion. See Vazquez v. Cent. States
Joint Bd., 547 F. Supp. 2d 833, 861 (N.D. Ill. 2008) ("[I]t is
not the Court’s place to try to make arguments for represented
parties."). When confronted with the issue for the first time
during the Rule 60(b)(6) briefing, the court unremarkably
speculated that the limitations period had already run by the
time of the exhaustion ruling. Nothing prevented Aikens from
doing this same math during the exhaustion dispute and safe-
guarding his claim from later attack.

Tying a bow on its legal arguments, the principal dissent
appeals finally to equity. In its words, "The Complaint depicts
a literally unwarranted intrusion into the private communi-
ques of a citizen-soldier stationed many thousands of miles
from home and serving in the best traditions of the nation’s
militia, humiliated and disgraced by a nominal superior." Post
at 40. Calling "the cause [] just, the wayfarer worthy, and the
path untrodden," the principal dissent urges reversal of the
district court’s judgment. Id. at 41.

Although I hesitate to delve into the merits, suffice it to say
that the record also reveals an unseemly side to Aikens’s mili-
tary service. As the majority opinion notes, Aikens was ulti-
mately investigated for "hostile command climate" and
"inappropriate relations with women," and the findings were
substantiated by the Department of the Army Inspector Gen-
eral. Aikens’s principal contention in this case is that the evi-
dence used to support the findings—personal emails—was
obtained in contravention of his constitutional rights. The
equities thus do not weigh one-sidedly in Aikens’s favor and
ineluctably impel reversal, as the principal dissent would have
it.

Admittedly, our decision today bars a full airing of
Aikens’s claims. Because, however, I am satisfied that the
20 AIKENS v. INGRAM
deference owed the district court on appeal requires this
result, I concur in the majority opinion.

Judge Shedd, Judge Duncan, and Judge Agee have autho-
rized me to indicate that they join in this opinion.

KING, Circuit Judge, dissenting:

A majority of our en banc Court imposes the severest of
sanctions against Colonel Aikens for his lawyer’s failed, but
sincere attempt to have the district court address the merits of
Aikens’s claim that his former military associates engaged in
deplorable conduct that worked a serious deprivation of his
civil rights. Having concluded, wrongly, that it lacked author-
ity to decide the dispute, the district court dispatched Aikens
to embark on a futile quest to vindicate its jurisdictional the-
ory. Though the court believed itself rid of the matter, it was
required by long-standing Supreme Court precedent to none-
theless retain the case and enter a stay sua sponte. The district
court instead erroneously dismissed it, assuring Aikens that he
"may return to federal court" if he truly belonged there.
Aikens v. Ingram, 513 F. Supp. 2d 586, 592 (E.D.N.C. 2007).

Aikens took the court up on its offer, accepting its invita-
tion to return after verifying that proceeding before the Army
Board for Correction of Military Records (the "ABCMR")
was unnecessary. That process took less than seven months,
an accomplishment that, given the oft-glacial pace of civil liti-
gation, can hardly be criticized. But because counsel sought
to attract the district court’s attention through a timely Rule
60(b) motion rather than risking his client’s cause by filing a
potentially untimely new complaint, the court yanked the wel-
come mat from beneath Aikens’s feet. Now, on appeal, the en
banc majority has failed to appreciate that this entire predica-
ment was not the result of counsel’s disputably poor choices,
but was instead caused by the district court’s demonstrably
wrong ones. Unwilling to lend my sanction to the injustice
below, I must dissent.
 AIKENS v. INGRAM 21
I.

A.

Colonel Aikens asserts that, while he was deployed to the
Middle East supporting Operation Iraqi Freedom, his personal
email was illegally intercepted and used to compel his retire-
ment from the North Carolina Army National Guard (the
"Guard") after thirty-two years of service. Those responsible,
according to Aikens, were Adjutant General William E.
Ingram, Jr., and Lieutenant Colonel Peter von Jess. On April
27, 2006, Aikens filed his § 1983 claim in the Eastern District
of North Carolina, alleging that Ingram and von Jess had con-
travened his Fourth Amendment rights. Over Aikens’s vehe-
ment objection, the district court dismissed the § 1983 claim
on the mistaken belief that Aikens was required, but had
failed, to exhaust remedies with the ABCMR. See Aikens v.
Ingram, 513 F. Supp. 2d 586, 588 (E.D.N.C. 2007).

Generally speaking, if a service-member plaintiff fails to
exhaust "available intraservice remedies," his federal claim
against the military is "a nonjusticiable military controversy."
Williams v. Wilson, 762 F.2d 357, 360 (4th Cir. 1985). We
have recognized an exception, however: "If the outcome
would predictably be futile, the doctrine of exhaustion will
not apply." Guerra v. Scruggs, 942 F.2d 270, 276 (4th Cir.
1991) (internal quotation marks omitted). In conformance
with our precedent, Colonel Aikens contended in the district
court that there were no "available intraservice remedies" and
the outcome of an ABCMR application "would predictably be
futile" because the ABCMR lacked jurisdiction to accord him
any relief. See 32 C.F.R. § 581.3(e)(1)(iii) (providing that an
"application may be returned without action if . . . [t]he
ABCMR does not have jurisdiction to grant the requested
relief"); cf. Guerra, 942 F.2d at 277 (observing that "the
inability of the [ABCMR] to give the plaintiff all the relief he
seeks does not automatically excuse the failure to exhaust"
(citing Williams, 762 F.2d at 360 n.6)). Aikens principally
22 AIKENS v. INGRAM
maintained — with citation to numerous supporting authori-
ties — that his separation from the Guard was a state matter
for which no federal ABCMR remedies existed. The court
disagreed, however, analogizing to our decisions where some
ABCMR relief was thought to be available and thus exhaus-
tion was deemed to be required. See Aikens, 513 F. Supp. 2d
at 591-92.

Once the district court dismissed his case, Colonel Aikens
was faced with two options. First, he could proceed directly
to the ABCMR — plainly a far more suitable and definitive
arbiter of its own jurisdiction than any federal court. See Ran-
dall v. United States, 95 F.3d 339, 348 (4th Cir. 1996) (recog-
nizing that, to the extent federal courts may review ABCMR
decisions, "such decisions can be set aside only ‘if they are
arbitrary, capricious, or not based on substantial evidence’"
(quoting Chappell v. Wallace, 462 U.S. 296, 303 (1983))).1
Alternatively, Aikens could appeal to this Court and, if we
affirmed the district court, end up before the ABCMR any-
way. Aikens selected the obvious and more efficient option:
filing the ABCMR application. Four months later, just as
Aikens had predicted, the ABCMR determined that it was
powerless to act on the application because the relief sought
therein was "not within [its] purview." J.A. 43.2
1
Indeed, a federal court’s view of the ABCMR’s jurisdiction is of no
import when the ABCMR itself has spoken on the issue. The federal
courts may only forecast how the ABCMR might delineate its own juris-
diction, not define the ABCMR’s jurisdiction for it. See Guerra, 942 F.2d
at 276 (recognizing that, in determining whether exhaustion is necessary,
we must assess "[i]f the outcome would predictably be futile" (internal
quotation marks omitted)); see also Randall, 95 F.3d at 348 (observing
that, insofar as ABCMR decisions are subject to federal court review at
all, "such decisions can be set aside only if they are arbitrary, capricious,
or not based on substantial evidence" (internal quotation marks omitted)).
As the district court itself acknowledged, courts must "grant[ ] deference
to the military to handle its own affairs." Aikens, 513 F. Supp. 2d at 591-
92.
2
Citations herein to "J.A. __" refer to the contents of the Joint Appendix
filed by the parties to this appeal.
 AIKENS v. INGRAM 23
This development brought Colonel Aikens to another cross-
roads. On the one hand, because his § 1983 claim had been
dismissed without prejudice, he could reassert it in a newly
filed action. Such a course was problematic, however,
because Ingram and von Jess were already maintaining that
the limitations period on the § 1983 claim had expired. On the
other hand, Aikens could seek relief under Rule 60(b). The
Rule 60(b) path was attractive because it would place Aikens
in the same position he had occupied prior to the district
court’s erroneous exhaustion ruling — as the proponent of an
indisputably timely § 1983 claim. Moreover, the court had
explicitly assured Aikens that, if his position were shown to
be correct, and "the ABCMR does not have jurisdiction," he
could "return to federal court." Aikens, 513 F. Supp. 2d at
592. In these circumstances, Aikens understandably chose to
file his Rule 60(b) motion. In so doing, he explained to the
court that Rule 60(b) relief was necessary to avoid any statute
of limitations problem, and he reminded the court of its
explicit assurance. The crux of Aikens’s position was clear-
cut: He was entitled to Rule 60(b) relief because the court had
erred in ordering exhaustion of intraservice remedies and had
thereby caused his limitations period predicament.

In assessing the Rule 60(b) motion, the district court recog-
nized that the statute of limitations on the § 1983 claim had
"seemingly" expired. See Aikens v. Ingram, No. 5:06-cv-
00185, slip op. at 7-8 (E.D.N.C. Nov. 5, 2008) (the "Rule
60(b) Order").3 The court observed that, according to Colonel
Aikens’s complaint, he "discovered the facts underlying his
cause of action on or about November 24, 2003." Id. at 7. The
court further observed that "the statute of limitations seem-
ingly began to run on that date, and it seemingly expired three
years later, on November 24, 2006." Id. at 8. Obviously, if the
limitations period ended on November 24, 2006 — as the
court assumed — it expired prior to not only the ABCMR
3
The district court’s unpublished Rule 60(b) Order is found at J.A. 44-
52.
24 AIKENS v. INGRAM
determination of February 6, 2008, but also before the errone-
ous dismissal on September 13, 2007.4

Notwithstanding its supposition that Colonel Aikens had
been time-barred from re-asserting his § 1983 claim in a new
action even prior to the dismissal, the district court refused to
vacate the judgment under Rule 60(b). The court justified its
denial of relief by attributing the statute of limitations predic-
ament to "two tactical decisions with adverse affects [sic]"
made by Aikens himself — his decision not to exhaust
intraservice remedies before filing suit and his decision to
"wait[ ] to file suit over two years into the statute of limita-
tions, [leaving] little time if a court were to determine that
exhaustion was required." Rule 60(b) Order 8.5 Even though
Aikens had accurately concluded that such an exhaustion
effort was unnecessary because the ABCMR lacked jurisdic-
tion to accord relief, in the court’s view Aikens should have
foreseen that it would incorrectly rule to the contrary. And,
having anticipated the court’s error, Aikens should have acted
to ensure that his § 1983 claim would not thereby be rendered
untimely.6
4
The district court declined to "resolve [the statute of limitations] issue
definitively," explaining that "[if] plaintiff files a new action, and defen-
dants assert the statute-of-limitations defense, the court will then address
the issue." Rule 60(b) Order 8 n.1.
5
Executing an about-face, the court disclaimed ever "implying that
plaintiff could return to court in this action." Rule 60(b) Order 7. "Rather,"
according to the court, it "was making the unremarkable observation that
if the ABCMR determined that it lacked jurisdiction, nothing in the court’s
dismissal would prevent plaintiff from filing a new action against Ingram
and von Jess." Id. In the very next paragraph of the Rule 60(b) Order,
however, the court contradicted its assertion that its dismissal did not fore-
close a new action, opining that the statute of limitations on Aikens’s
§ 1983 claim had likely expired well before the dismissal was even
entered. See id. at 7-8. Surprisingly, the court blamed Aikens, rather than
itself, for creating the statute of limitations issue. As the court would have
it, the timeliness problem resulted not from its own mistake, but from
Aikens’s failure to anticipate the same.
6
There is simply no basis for the district court’s theory that Colonel
Aikens should have foreseen its error and proceeded accordingly.
 AIKENS v. INGRAM 25
B.

In pursuing relief, Colonel Aikens specifically invoked
clause (6) of Rule 60(b), which authorizes a court to relieve
a party from a final judgment for "any other reason [not
spelled out in clauses (1)-(5)] that justifies relief." Of course,
to be entitled to Rule 60(b)(6) relief, the movant must demon-
strate "extraordinary circumstances." See Valero Terrestrial
Corp. v. Paige, 211 F.3d 112, 118 n.2 (4th Cir. 2000)
(explaining that "the difference between Rule 60(b)(6) and
Rules 60(b)(1)-(5) is that ‘extraordinary circumstances’ are
required to bring the Rule 60(b)(6) motion within the ‘other
reason’ language of that Rule" (internal quotation marks and
alterations omitted)). Nevertheless, we have had no difficulty
recognizing the existence of extraordinary circumstances
where — as here — the district court erroneously issued the
underlying judgment. See White v. Investors Mgmt. Corp.,
888 F.2d 1036, 1041 (4th Cir. 1989); Compton v. Alton
Steamship Co., 608 F.2d 96, 106-07 (4th Cir. 1979).7

Although the court found that Aikens and his lawyer "must have known
that [Aikens] would face the ABCMR exhaustion issue in his case," Rule
60(b) Order 7, that finding stops well short of the proposition that Aikens
should have expected the court to erroneously dispose of that issue. And
indeed, once Aikens assessed the exhaustion issue, he concluded — cor-
rectly — that the ABCMR was powerless to award him relief.
7
Notably, we have also observed that a "mistake" within the meaning
of clause (1) of Rule 60(b) — authorizing relief from judgment because
of "mistake, inadvertence, surprise, or excusable neglect" — may include
a mistake made by the court itself. See United States v. Williams, 674 F.2d
310, 313 (4th Cir. 1982) ("In certain limited circumstances, the word ‘mis-
take’ in Rule 60(b) has . . . been read to include mistakes by the court.").
At first blush, this notion might seem to hurt Aikens, because the Supreme
Court has indicated that clause (1) and clause (6) "are mutually exclusive."
See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.
380, 393 (1993) (citing Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 863 & n.11 (1988)). In deeming a movant to be entitled to Rule
60(b) relief because of a court’s mistake, however, we have relied on
clause (6). See Compton, 608 F.2d at 104 & n.15 (declining to resolve
26 AIKENS v. INGRAM
In White, a dispute over the amount due the plaintiff on a
stock redemption, the district court had awarded summary
judgment to the defendant "without notice and without a hear-
ing, even though there was an outstanding order [issued by
the magistrate judge] compelling the defendant . . . to produce
a critical document in the determination of the case." See 888
F.2d at 1037, 1040. We reversed the court’s denial of Rule
60(b) relief, explaining:

When the court overlooks the dispositive issue in a
case and proceeds to decide a case summarily before
discovery is concluded and before an order of dis-
covery has been complied with, there has been a
mistake and inadvertence and one that works an
injustice. Rule 60(b) — especially as amended in
1948 by the addition of (b)(6) — clearly covers the
plaintiff’s motion to vacate the summary judgment
entered here.

whether court’s mistake constituted clause (1) "mistake," because relief
was available under clause (6)); see also White, 888 F.2d at 1041 (deter-
mining, without mentioning clause (1), that clause (6) relief was available
to remedy court’s mistake); cf. Williams, 674 F.2d at 312-13 (concluding
that court’s purported error was not type of "mistake" that would justify
clause (1) relief). Moreover, the rationale for deeming clause (1) and
clause (6) to be mutually exclusive — prohibiting parties from attempting
to utilize clause (6) to avoid clause (1)’s one-year limitations period — is
not implicated here because Aikens filed his Rule 60(b) request within
seven months of the Dismissal Order. See Pioneer Inv. Servs., 507 U.S.
at 393 (recognizing that, because clauses (1) and (6) are mutually exclu-
sive, "a party who failed to take timely action [under clause (1)] may not
seek relief more than a year after the judgment by resorting to [clause
(6)]"); see also Fed. R. Civ. P. 60(c)(1) (allowing one year for clause (1)
motion but "reasonable time" for clause (6) motion). Additionally, we
have recognized that, because Rule 60(b)’s "grounds for relief often over-
lap," courts are "free . . . to do justice in cases in which the circumstances
generally measure up to one or more itemized grounds." Werner v. Cabo,
731 F.2d 204, 207 (4th Cir. 1984) (citing Compton, 608 F.2d at 102). As
such, although it may also have been proper for Aikens to rely on clause
(1), it was not at all inappropriate for him to invoke clause (6).
 AIKENS v. INGRAM 27
Id. at 1041. In Compton, an action for unpaid wages in which
a default judgment was entered against the defendant, the dis-
trict court had erroneously awarded the plaintiff statutory pen-
alty wages, resulting in an award "almost two hundred times"
the amount plaintiff was actually owed. See 608 F.2d at 99,
101. We concluded that — because of "the unusual and
extraordinary circumstances of this case and in view of the
unconscionably unjust judgment entered" — this was "just
such an extraordinary case where [Rule 60(b)(6)’s] ‘catch-all’
ground was intended to afford relief." Id. at 106, 107 (empha-
sis omitted).

On appeal, Colonel Aikens also relies on similarly decided
Rule 60(b)(6) decisions from other jurisdictions, specifically
involving erroneous dismissals for failure to exhaust. See
Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009); Whitmore v.
Avery, 179 F.R.D. 252 (D. Neb. 1998). In Thompson, the dis-
trict court had dismissed several of the petitioner’s federal
habeas claims because, in prior state proceedings, he had
failed to seek discretionary review of those claims in the
Supreme Court of Tennessee. See 580 F.3d at 433. Following
the Tennessee supreme court’s promulgation of a rule clarify-
ing that state habeas petitioners need not appeal to that court
to exhaust their claims, the Thompson petitioner unsuccess-
fully moved in the district court for Rule 60(b)(6) relief from
its dismissal order. See id. The Sixth Circuit reversed the
denial of the clause (6) motion, however, concluding that pro-
mulgation of the new Tennessee supreme court rule was an
"extraordinary circumstance" warranting such relief. See id. at
442-43. Notably, the Sixth Circuit distinguished Thompson
from Gonzalez v. Crosby, 545 U.S. 524, 533 (2005), wherein
the Supreme Court deemed clause (6) relief inappropriate
based on a recent change in federal decisional law regarding
the interpretation of a federal habeas procedural statute. The
Thompson court explained that, unlike the change in federal
law in Gonzalez, the change in Tennessee state law was an
extraordinary circumstance because "refusing to recognize it
would disserve . . . comity interests . . . by ignoring the state
28 AIKENS v. INGRAM
court’s view of its own law." Thompson, 580 F.3d at 443
(internal quotation marks and emphasis omitted).

Finally, in Whitmore, after dismissing the petitioner’s fed-
eral habeas claim for failure to exhaust state remedies, the dis-
trict court itself recognized that it had made a mistake worthy
of Rule 60(b)(6) relief. See 179 F.R.D. at 258-59. The court
observed, inter alia, in terms that are strikingly applicable
here, that "the petitioner [could not] have followed my
instructions and exhausted his remedies, because the claim
was not one that could be exhausted or that federal law
requires to be exhausted." Id. at 259. Accordingly, the court
concluded that "this is the type of case that warrants the
exceptional relief contemplated by Rule 60(b)(6)." Id.

Likewise, the extraordinary circumstances demonstrably
present here demand that Colonel Aikens be afforded Rule
60(b)(6) relief from the district court’s error. As Aikens has
aptly emphasized,

Appellees unlawfully — and possibly criminally —
invaded Col. Aikens’ privacy by monitoring and
intercepting his e-mails, while he was serving his
country in a combat zone, in violation of the Fourth
Amendment and [42] U.S.C. § 1983. Col. Aikens
has yet to be heard on the merits of his claims and,
without relief, may never be. Col. Aikens’ first
timely attempt to have his case heard was dismissed
for failure to exhaust intraservice remedies, despite
the fact that no intraservice remedies were available.
His second attempt, this time before the ABCMR, as
directed by the district court, was rejected because,
as Col. Aikens predicted, the ABCMR lacks author-
ity to provide the relief Col. Aikens seeks. Col.
Aikens’ third attempt, to revive his first lawsuit
through Rule 60(b)(6) after exhausting intraservice
remedies with the ABCMR as required by the dis-
trict court, was denied. Col. Aikens now faces a stat-
 AIKENS v. INGRAM 29
ute of limitations defense to any future attempt to
file a new lawsuit. These circumstances are excep-
tional.

Reply Br. of Appellant 1-2 (footnote omitted). Indeed, in
these circumstances, the court has committed "a mistake . . .
that works an injustice," see White, 888 F.2d at 1041, and
"fundamental fairness and considerations of justice . . . com-
mand that the judgment . . . be vacated," see Compton, 608
F.2d at 107. Notably, in addition to accomplishing justice for
Aikens, Rule 60(b)(6) relief would serve comity interests by
recognizing that the ABCMR is entitled to define its own
jurisdiction. Cf. Thompson, 580 F.3d at 443 (concluding that
Rule 60(b)(6) relief furthered comity interests by recognizing
and accepting "the state court’s view of its own [habeas cor-
pus] law" (internal quotation marks omitted)).

To be sure, not all mistakes made by a court are sufficient
to warrant Rule 60(b) relief. We have admonished that
"[w]here the motion is nothing more than a request that the
district court change its mind, . . . it is not authorized by Rule
60(b)." United States v. Williams, 674 F.2d 310, 313 (4th Cir.
1982). Furthermore, we have said that "we may not review
the merits of the underlying order" in reviewing the denial of
Rule 60(b) relief. MLC Auto., LLC v. Town of S. Pines, 532
F.3d 269, 277 (4th Cir. 2008) (internal quotation marks omit-
ted). Here, however, Colonel Aikens was not asking the dis-
trict court to "change its mind" about its exhaustion ruling, or,
by appealing, seeking our independent review of the merits of
the court’s decision. Rather, he is asking for the simple recog-
nition, based on the ABCMR’s assessment of its jurisdiction,
that the district court itself erred in concluding that he was
required to exhaust intraservice remedies. These extraordinary
circumstances warrant Rule 60(b)(6) relief.

II.

The foregoing amply illustrates that had the district court
been inclined to grant Aikens’s Rule 60(b) motion, it certainly
30 AIKENS v. INGRAM
had the discretion to do so — a proposition that I trust would
not stir much controversy even among the members of the en
banc majority. By far the more provocative legal question is
whether the court’s denial of the motion constituted an abuse
of its discretion.

Put simply, the abuse of discretion standard of review does
not confer upon a district court carte blanche to close its doors
to a litigant who is merely following the court’s own advice.
Indeed, we have previously emphasized that "even under an
abuse of discretion standard, we still must engage in ‘mean-
ingful appellate review.’" United States v. Abu Ali, 528 F.3d
210, 261 (4th Cir. 2008). Our precedent counsels that "a
reviewing court is obliged to reverse if the court has a definite
and firm conviction that the court below committed a clear
error of judgment in the conclusion it reached upon a weigh-
ing of the relevant factors." Gannett Co., Inc. v. Clark Const.
Group, Inc., 286 F.3d 737, 741 (4th Cir. 2002) (internal cita-
tion omitted). This is so "[e]ven if a district court applies the
correct legal principles to adequately supported facts." Id.

In this case, the district court erroneously dismissed
Aikens’s claim, thereby inducing him unwittingly to pursue a
litigation strategy that ultimately prevented his claim from
being heard. Afforded the opportunity to set the matter
straight, the court instead perpetuated and compounded its
earlier mistake. In such circumstances, I cannot help but hold
a definite and firm conviction that, by denying Aikens’s Rule
60(b) motion, the district court committed a "clear error of
judgment."

The majority holds that the district court did not abuse its
discretion because it supposes that Aikens may have had other
litigation alternatives. However, the majority offers no sup-
port for the contention that the presence of other litigation
alternatives — even if true — would justify the district court’s
denial of Aikens’s motion. The district court’s culpability for
Aikens’s statute of limitations predicament itself constitutes
 AIKENS v. INGRAM 31
extraordinary circumstances such that the court abused its dis-
cretion by subsequently denying Aikens’s Rule 60(b) motion.8
With all respect to the majority, emphasizing the steps that
counsel might have taken to extricate his client from the mess
below unfairly deflects the focus from the district court and
inappropriately marginalizes the efforts that counsel, in good
faith, did take. I therefore address — and reject — the majori-
ty’s theories in turn.

A.

The majority criticizes counsel for not appealing the district
court’s jurisdictional ruling. But what would Aikens have
gained from an appeal? Less than seven months after the dis-
missal, Aikens was back before the court with an unequivocal
decree that the ABCMR was an improper forum for this par-
ticular dispute, from no less an authority than the ABCMR
itself. There was virtually no chance that we would have ren-
8
The district court, for its part, unjustifiably equated this matter to deci-
sions in which "[t]he Supreme Court and the Fourth Circuit have denied
Rule 60(b)(6) relief when the moving party made a tactical choice that
later proved unwise." Rule 60(b) Order 6 (citing Ackermann v. United
States, 340 U.S. 193, 200 (1950) (movant made "voluntary, deliberate,
free, untrammeled choice" not to file timely appeal based on belief he
would have to sell home to pay costs); Schwartz v. United States, 976 F.2d
213, 218 (4th Cir. 1992) (movant made "calculated, free, and deliberate"
decision to settle dispute)). More specifically, the court relied on inappo-
site decisions for the proposition that Colonel Aikens could not make "deft
use of Rule 60(b)(6)" to evade "time limitations that otherwise apply." Id.
at 8 (citing, inter alia, Dowell v. State Farm Fire & Cas. Auto. Ins. Co.,
993 F.2d 46, 47-48 (4th Cir. 1993) (movant failed to timely request certifi-
cation of state law question or appeal adverse judgment); Home Port Rent-
als, Inc. v. Ruben, 957 F.2d 126, 133 (4th Cir. 1992) (movant sought
clause (6) relief from default judgment for "excusable neglect" to circum-
vent clause (1) time limitations)). Neither these nor any other applicable
authorities support the notion that Colonel Aikens’s failure to foresee and
safeguard against the district court’s error constitutes an "unwise tactical
choice" foreclosing Rule 60(b)(6) relief, or that Aikens cannot make "deft
use of Rule 60(b)(6)" to remedy the timeliness problem directly resulting
from the court’s mistake.
32 AIKENS v. INGRAM
dered a comparable judgment so quickly, given our systemic
druthers for orderly briefing, unhurried argument, and deliber-
ate decision-making. The only advantage that Aikens would
have realized from a Fourth Circuit judgment is the insurance
it would have provided against a second unanticipated and
unjustified refusal of the district court to entertain the merits
of his claim. Viewed through the perfect prism of hindsight,
that might have been a valuable benefit. Through the soot-
stained obsidian of the then and there, however, the potential
boon of an immediate appeal was by no means apparent.9

B.

True, counsel could have requested a stay while he
attempted to proceed before the ABCMR. But, in accordance
with procedures long established by the Supreme Court, the
district court should have entered a stay on its own initiative.
In General American Tank Car Corp. v. El Dorado Terminal
Co., 308 U.S. 422 (1940), the Court confronted a dispute
9
In dismissing Colonel Aikens’s § 1983 claim for failure to exhaust
intraservice remedies, the district court asserted that it "acted in accor-
dance with a veritable wall of Fourth Circuit precedent requiring such
exhaustion." Rule 60(b) Order 7. In this regard, the court perhaps goes so
far as to suggest that it did not actually err in its exhaustion ruling (a prop-
osition pursued on appeal by Ingram and von Jess). See Br. of Appellees
22 (contending that there can be no Rule 60(b) relief premised on a "mis-
take" made by the court, because the "court’s conclusion that Aikens was
required to exhaust his intraservice administrative remedies . . . was cor-
rect under Fourth Circuit precedent").
Perhaps if Aikens had appealed the dismissal, we would have reversed
the district court’s ruling that intraservice remedies were available and
required to be exhausted. But we might instead have affirmed and Aikens
would have ended up before the ABCMR anyway — the more likely out-
come if the district court indeed "acted in accordance with a veritable wall
of Fourth Circuit precedent." In either case, our decision could only have
constituted a prediction — and not the definitive word — on whether the
ABCMR possessed jurisdiction. See supra note 1. As such, it was entirely
reasonable for Aikens to proceed directly to the ABCMR and then return
to the district court on his Rule 60(b) motion.
 AIKENS v. INGRAM 33
between a shipper of coconut oil and a supplier of railroad
cars for rent, in which the latter ceased honoring its contract
to credit the shipper with mileage allowances paid by the rail-
roads using the rental cars to haul the shipper’s goods. The car
owner premised its refusal on an intervening decision of the
Interstate Commerce Commission ("ICC") that arguably ren-
dered illegal the parties’ business arrangement.

A unanimous Court, speaking through Associate Justice
Roberts, rejected the ICC’s contention, as amicus curiae, that
the federal courts lacked jurisdiction over the matter, observ-
ing that "[t]he action was an ordinary one in assumpsit on a
written contract." General American, 308 U.S. at 432. The
Supreme Court nevertheless held that the district court
"should not have proceeded to adjudicate the rights and liabil-
ities of the parties in the absence of a decision by the [ICC]
with respect to the validity of the practice involved in the light
of the provisions of the Interstate Commerce Act." Id. at 428.
The Court confirmed that the dispute was within the adminis-
trative authority of the ICC to decide, although Congress had
left it to the courts to enforce those lawful decisions. In so rul-
ing, the Supreme Court issued an unambiguous directive to
district courts:

When it appeared in the course of the litigation that
an administrative problem, committed to the [ICC],
was involved, the court should have stayed its hand
pending the Commission’s determination of the law-
fulness and reasonableness of the practices under the
terms of the Act. There should not be a dismissal,
but . . . the cause should be held pending the conclu-
sion of an appropriate administrative proceeding.
Thus, any defenses the [defendant] may have will be
saved to it.

Id. at 433 (citations omitted).

Over the years, the Court has reinforced the proper proce-
dure in these sorts of cases. See, e.g., United States v. Mich.
34 AIKENS v. INGRAM
Nat’l Corp., 419 U.S. 1, 4-5 (1974) (per curiam) (document-
ing "common practice" of district courts to retain jurisdiction
through stay while litigation proceeds through state courts,
and noting that same procedure generally applies "when the
resolution of a claim cognizable in a federal court must await
a determination by an administrative agency having primary
jurisdiction"). The primary jurisdiction doctrine applies "to
claims properly cognizable in court that contain some issue
within the special competence of an administrative agency. It
requires the court to enable a ‘referral’ to the agency, staying
further proceedings so as to give the parties reasonable oppor-
tunity to seek an administrative ruling." Reiter v. Cooper, 507
U.S. 258, 268 (1993) (citations and footnote omitted). It is
distinguishable from the doctrine of exhaustion of administra-
tive remedies, applicable to disputes where agency relief must
be pursued as a prerequisite to redress in the courts, and
requiring any such suit to be dismissed as premature. See id.
at 269; Cavalier Tel., LLC v. Va. Elec. & Power Co., 303
F.3d 316, 322 n.10 (4th Cir. 2002) (citing, inter alia, Reiter).

Absent an exhaustion bar, dismissal is generally proper
only "where there is assurance that no party is prejudiced
thereby." Mich. Nat’l at 5 (citing Far East Conference v.
United States, 342 U.S. 570 (1952) (footnote omitted)); see
also Reiter at 268-69 (approving dismissal without prejudice
"if the parties would not be unfairly disadvantaged"). In
Reiter, the Supreme Court declined to impose a requirement
of ICC exhaustion as to counterclaims asserted in response to
an adversary proceeding in bankruptcy, expressing its concern
that "the limitations period for filing actions . . . could expire
before the ICC acted." 507 U.S. at 271.

As with Reiter, the prejudice inquiry in other cases has
focused on limitations issues. See Ton Servs., Inc. v. Qwest
Corp., 493 F.3d 1225, 1242-43 (10th Cir. 2007) (acknowledg-
ing dismissal option "pending primary jurisdiction referral,"
but counseling that "[w]here damages are sought and the rele-
vant statute of limitations might preclude relief . . . a stay is
 AIKENS v. INGRAM 35
likely to be preferable"); Guglielmo v. Long Island Lighting
Co., 445 N.Y.S.2d 177, 183 (N.Y. App. Div. 1981) (opining
that, because of potential prejudice to plaintiff by running of
statute of limitations, lower court "should have denied the
cross motion for dismissal, and, after referring plaintiff to the
PSC, should have, sua sponte, stayed this action pending the
filing, and final resolution, of [an administrative] complaint"
(citing Mich. National)); see also S.S.W., Inc. v. Air Transp.
Ass’n of Am., 191 F.2d 658, 664 (D.C. Cir. 1951) (endorsing
General American approach in antitrust action upon primary
jurisdiction referral to Civil Aeronautics Board). Had the dis-
trict court in this case properly adhered to the dictates of Gen-
eral American and its progeny, the resultant stay would have
wholly obviated any need for a lengthy appeal or for Aikens
having to ultimately choose between the Scylla of Rule 60(b)
reinstatement and the Charybdis of starting over. The court’s
error of law and its failure to consider the same in denying
Colonel Aikens Rule 60(b)(6) relief from the improper dis-
missal of his claims was, "by definition," an abuse of its dis-
cretion. Koon v. United States, 518 U.S. 81, 100 (1996).10
10
In his separate concurring opinion, my good colleague admonishes
that I have somehow interpreted "Supreme Court precedent a bit too
broadly," surmising that the Court has stopped short of imposing an iron-
clad rule mandating the sua sponte entry of a stay whenever a case is
referred to an administrative agency under the primary jurisdiction doc-
trine. Ante at 17. But the only exceptions specifically approved by the
Supreme Court to its pronouncement in General American that district
courts should stay such actions pending referral are cases over which the
agency has exclusive jurisdiction, or cases where Congress has afforded
no remedy through the agency or the courts. See Mich. Nat’l, 419 U.S. at
5 n.2 (citing Pan American World Airways v. United States, 371 U.S. 296
(1963); Montana-Dakota Util. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246
(1951)). Patently, neither of those exceptions to the Court’s mandate apply
here. Insofar, then, as the concurrence suggests that the district court in
this case, in the exercise of its ordinary discretion, was free to ignore the
established "common practice" in the federal courts, see Mich. Nat’l at 4,
the concurrence is simply incorrect.
36 AIKENS v. INGRAM
C.

In connection with the majority’s assertion that Aikens
could have successfully proceeded with a new suit instead of
seeking to revive the original action, counsel’s supposed
"concession" at oral argument, see ante at 12, that the hypo-
thetical course would have been timely taken is hardly deter-
minative. No court has yet endeavored to decide the issue, see
supra note 4, and it is not easily resolved.

First, it is not entirely clear when the underlying cause of
action accrued, although the Amended Complaint recites that
"[o]n or about November 24, 2003, [Aikens] was informed
that [Major David B.] Culbreth was . . . being involuntarily
separated . . . based upon an e-mail message that Culbreth
sent to [Aikens] on August 17, 2003." J.A. 13. Further, on that
same date, Aikens "was also informed that . . . [Adjutant Gen-
eral William E.] Ingram used illegal means to obtain the . . . .
subject email message . . . sent from Culbreth’s personal
email account . . . at home in Fayetteville, North Carolina, to
[Aikens] who was stationed in Camp Doha, Kuwait." Id.
Aikens’s computer had been operational, however, almost
from his arrival in Kuwait on April 21, 2003, and it is not
inconceivable that if this case ever proceeded to discovery,
the evidence might reveal an earlier accrual date.

Second, and more importantly, it is far from certain how
much, if any, time since Aikens filed suit on April 27, 2006,
ought to be excluded from the limitations calculus. Federal
civil rights actions borrow the analogous state limitations
period, and it has been assumed from the beginning that North
Carolina’s three-year period to commence personal injury
actions governs here. Cf. Franks v. Ross, 313 F.3d 184, 194
(4th Cir. 2002). It is also true, however, that we apply the
equitable tolling rules of the forum state. See Wade v. Danek
Medical, Inc., 182 F.3d 281, 289 (4th Cir. 1999). Though the
North Carolina courts accord parties one year after taking a
voluntary dismissal to refile an otherwise time-barred action
 AIKENS v. INGRAM 37
so long as the original suit was filed within the limitations
period, see N.C. Gen. Stat. § 1A-1, Rule 41A; Georgia-
Pacific Corp. v. Bondurant, 344 S.E.2d 302, 365 (N.C. Ct.
App. 1986), Aikens’s claim was not voluntarily dismissed.

Consequently, and notwithstanding counsel’s understand-
able efforts to keep from conceding as stale any sort of claim
his client may yet pursue, the precise date by which Aikens
was required to file in order to forestall a legitimate limita-
tions defense remains very much an open question. It was no
less so on March 31, 2008, when, back before the district
court, counsel had to decide how to proceed. Litigators, by
training and experience, tend to be careful, risk-averse sorts,
who are loath to leave the house with a mere belt keeping
their pants in place, especially when they also have a perfectly
good pair of suspenders hanging in the closet. I do not doubt
for an instant that counsel, buoyed by the district court’s
express invitation to return in the initial proceeding, dis-
counted the possibility of commencing a new suit as entailing
needless risk of a meritorious limitations defense. Under the
circumstances, counsel probably expected his Rule 60(b)
motion to be summarily granted, with the new-suit option
reserved as part of a fallback plan and not invoked prema-
turely.

Of course, starting anew must have seemed even less palat-
able after the court delayed its ruling until November 5, 2008,
taking longer to deny the Rule 60(b) motion than Aikens did
to return from his enforced dalliance with the ABCMR. But
let us suppose that counsel indeed had pressed forward with
refiling instead of taking this appeal, in which case it is appar-
ent that the district court would have had to resolve the limita-
tions issue. In so doing, the court would not have lacked the
means to consider the equities. The North Carolina courts rec-
ognize the general principle that "time frames may be tolled
where equitable considerations justify their suspension."
Republic Indus. v. Teamsters Joint Council, 718 F.2d 628,
644 (4th Cir. 1983) (quoted in Fairway Outdoor Adver. v.
38 AIKENS v. INGRAM
Edwards, 678 S.E.2d 765, 771 (N.C. Ct. App. 2009)). The
Supreme Court of the United States has likewise acknowl-
edged "a traditional equitable tolling principle," if appropri-
ately tailored and not contrary to the expressed will of the
legislative branch. Honda v. Clark, 386 U.S. 484, 501-02
(1967).

There is a relative paucity of North Carolina law lending
insight as to the circumstances its courts might consider suffi-
cient to justify equitable tolling of an applicable statute of
limitations. A number of reported cases, however, involve
some sort of misleading act or statement on the part of the
defendant that justifiably induces the plaintiff to defer timely
prosecution of the claim. See, e.g., Duke Univ. v. Stainback,
357 S.E.2d 690 (N.C. 1987) (ruling that defendant debtor
could not invoke statute of limitations to bar action by plain-
tiff creditor where debtor and his lawyer had caused creditor
to forbear from collection efforts by representations that cred-
itor would be paid from proceeds of lawsuit against third
party); Nowell v. Great Atl. & Pac. Tea Co., 108 S.E.2d 889
(N.C. 1959) (concluding that builder’s intermittent actions
and assurances in attempting to correct structural construction
defects before finally disclaiming further responsibility served
to toll limitations period).

Although this line of authority may suffer somewhat from
lack of development, I can say with some confidence that the
results in cases like Stainback and Nowell obtain primarily
from an innocent plaintiff having been deceived, and only
secondarily from the near inevitability that the defendant has
been the instrument of that deception. Equity exists to reward
the deserving, more so than to punish the culpable. See Stain-
back, 357 S.E.2d at 341 ("Actual fraud, bad faith, or an intent
to mislead or deceive is not essential to invoke the equitable
doctrine of estoppel."). The point is well illustrated in Carlile
v. South Routt Sch. Dist. RE 3-J, 652 F.2d 981 (10th Cir.
1981). In Carlile, the plaintiff was allowed to maintain her
Title VII action although it had been filed fifty-one days late.
 AIKENS v. INGRAM 39
The plaintiff’s dilatoriness was caused by an earlier order of
the district court, entered within the commencement period,
that granted a form motion allowing her to proceed without
payment of fees and costs and appointing an attorney to repre-
sent her. The order further provided "[t]hat this action shall be
deemed commenced upon filing of the aforesaid Motion."
Carlile, 652 F.2d at 983.

The Tenth Circuit dismissed an attempted appeal of the
lower court’s interlocutory decision permitting the case to go
forward, notwithstanding that the defendant was in no way
responsible for the late filing. In ruling on behalf of the plain-
tiff, the court of appeals reasoned that "[i]nasmuch as she
would suffer a considerable hardship if we were to set the
order aside, we are obliged to permit the order to stand." Car-
lile, 652 F.2d at 986. Subsequently, in declining relief to
another late-filer, the Supreme Court of the United States
cited Carlile with approval to distinguish its situation "where
the court has led the plaintiff to believe that she had done
everything required of her," from the one in which a plaintiff
of her own accord deems it sufficient to file a mere right-to-
sue letter as an attempted substitute for a complaint. Baldwin
Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (per
curiam). I presume that the North Carolina courts, if con-
fronted with an analogous situation, would find Baldwin
County and, in turn, Carlile persuasive authority. The upshot
is that Aikens may yet have his day in court notwithstanding
the majority’s decision today.

This matter, however, should not have been enshrouded in
such uncertainty. The district court in the proceedings below
was confronted with a Rule 60(b) motion, and not a new com-
plaint filed potentially out of time, but the same equitable
principles doubtlessly apply. If the court could find sufficient
justification to permit Aikens to file a new lawsuit, then it
could — and should — have found the "extraordinary circum-
stances" necessary to grant Aikens’s motion pursuant to Rule
60(b)(6). There is no authority for the proposition that the
40 AIKENS v. INGRAM
necessary threshold showing in the latter case is any more
onerous than in the former.11 All things being equal, there is
little reason to compel a plaintiff in Aikens’s shoes to submit
a new complaint duplicative of the one already on file, to pay
another $350 filing fee, and to draft and serve a second set of
summonses on multiple defendants, waiting, perhaps, for
another year or more until the "new" case ripens to the same
extent as the old one had. But when all things are decidedly
not equal — when resort to a remedy may very well depend
on the suit being timely filed — the time has come, in the
interests of justice and fairness, to stop standing on ceremony.

D.

The majority professes its fear that reinstatement of Colo-
nel Aikens’s lawsuit in this lone instance would endanger the
finality of judgments across the breadth of our domain,
decreeing that the supposed mandate of the federal rules for
strict deadlines admitting of few (or no) exceptions shall
remain inviolate. See ante at 8. In another case, the majority
would be right to jealously protect the familiar, if amorphous,
principle that litigation, at some point, must be suffered to
end. In this case, however, the litigation has not been suffered
to begin.

Why that should be is an utter mystery. Colonel Aikens has
pleaded facts that, if true, invite outrage. The Complaint
depicts a literally unwarranted intrusion into the private com-
muniques of a citizen-soldier stationed many thousands of
miles from home and serving in the best traditions of the
nation’s militia, humiliated and disgraced by a nominal supe-
rior in the pursuit of an unseemly personal vendetta. That the
majority has picked this particular instance to stand on cere-
11
This in spite of the majority’s quotation, ante at 8, of a Supreme Court
dissenting opinion to support its supposition that Rule 60(b)(6) is subject
to "a very strict interpretation" that admits of relief in extraordinary cir-
cumstances that "only truly" fit the bill.
 AIKENS v. INGRAM 41
mony and strike a mortal blow against slovenly papering of
the court file is baffling. Surely whatever interest the federal
courts may have in conducting their gatekeeping function
with spit-and-polish regimentation is necessarily at its nadir
when the cause is just, the wayfarer worthy, and the path
untrodden.12

The majority pays lip service to these notions of justice and
fairness, declaring that we have required movants like Aikens
to "have a meritorious claim or defense and that the opposing
party not be unfairly prejudiced." Ante at 8.13 Those additional
requirements are not found in the text of Rule 60(b)(6),
which, outside of the specific grounds enumerated in its pre-
decessor paragraphs, enables invocation simply for "any other
reason that justifies relief." And they are honored today only
in the breach, inasmuch as it is plain that Colonel Aikens’s
claim is substantial on its face and that it would hardly be
unfair to bring the defendants to answer for their alleged
actions.

Moreover, it is of no small irony that the majority’s slavish
adherence to what it characterizes as the spirit (if not the let-
12
As the concurrence points out, ante at 19, Aikens candidly admits in
his Amended Complaint that Army investigators utilized the ill-gotten and
stolen emails to substantiate certain unflattering allegations against him.
Importantly, however, Aikens has never admitted the accuracy of the
underlying allegations. In assessing whether to dismiss pursuant to Rule
12(b)(6), the district court was bound to view the facts alleged in the
Amended Complaint in the light most favorable to Aikens. See Philips v.
Pitt Cnty. Mem. Hosp., 572 F.3d. 176, 180 (4th Cir. 2009). The record
underwent no further development before the ABCMR, so in deciding
whether to grant Aikens relief pursuant to Rule 60(b)(6), the court would
have been constrained to again give him the benefit of the doubt. Of
course, to the extent that Aikens’s own conduct would have been relevant
to his claims against Ingram and von Jess, the district court could have
resolved all doubt by permitting the case to proceed.
13
Accord, Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94 n.3 (4th Cir.
1997) (citing Nat’l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th
Cir. 1993)).
42 AIKENS v. INGRAM
ter) of Rule 60(b)(6), contravenes the explicit command of the
rule that governs all the rest — Rule 1 — which provides that
all of the rules of civil procedure "should be construed and
administered to secure the just, speedy, and inexpensive deter-
mination of every action and proceeding." Fed. R. Civ. P. 1;
cf. Nat’l Bondholders Corp. v. McClintic, 99 F.2d 595, 600
(4th Cir. 1938) (observing that, in accordance with Rule 1,
successful administration of all federal civil procedure rules
depend upon "their application in various situations . . .
be[ing] subject to sound judicial discretion"). The majority
thus approves what is, in effect, a dismissal sanction upon
Colonel Aikens for what it perceives to be the shortcomings
of his lawyer (a perception that I enthusiastically reject). We
have proclaimed that such a drastic course of action "is usu-
ally inappropriate when it unjustly penalizes a blameless cli-
ent for the attorney’s behavior." Hillig v. Comm’r of Internal
Revenue, 916 F.2d 171, 174 (4th Cir. 1990). Although our
occasional refusal to enforce against clients the expected con-
sequences of their lawyers’ negligence typically arises in the
context of a Rule 41(b) involuntary dismissal, perhaps as a
discovery sanction, see id., or for an attorney’s failure to dili-
gently prosecute the case, see McCargo v. Hedrick, 545 F.2d
393 (4th Cir. 1976), there is no good rationale to exclude the
same concept from our equities calculus here.

III.

At the end of the day, Colonel Aikens was right — and the
district court was wrong — about whether so-called "exhaus-
tion" before the ABCMR was necessary before Aikens could
pursue his 42 U.S.C. § 1983 claim. The misperception on the
court’s part need not have been more than a hiccup had it sim-
ply followed Supreme Court precedent and ordered a stay.
Rather than acknowledging its errors upon Aikens’s return,
however, the district court compounded them by rejecting his
motion pursuant to Rule 60(b)(6). The court did so although
it had explicitly assured Aikens that he could have his claims
reinstated if his position was vindicated. Although the district
 AIKENS v. INGRAM 43
court may now wish to retreat from that representation,
Aikens was plainly entitled to rely on the court’s word. The
majority’s decision today to the opposite effect, grounded in
condemning Colonel Aikens for losing an unwinnable game
of "gotcha," discredits our system of justice.

If the majority’s approach is all it takes to foreclose a find-
ing of extraordinary circumstances for Rule 60(b)(6) relief,
that is, if a court can punish a movant for pursuing reasonable
and legitimate strategies simply because — with the benefit
of hindsight — the court can conjure up possible alternatives,
it is hard to imagine that Rule 60(b)(6) relief can ever be
obtained. To the contrary, I am convinced that, in light of the
serious nature of Aikens’s claims, the lack of unfair prejudice
to the defendants, and the court’s own significant contribution
to the untidiness of the situation, its denial of relief was a
clear abuse of discretion.14 Consequently, I would vacate the
14
I am not unmindful that, in reviewing all sorts of rulings for abuse of
discretion, we have habitually insisted that we will not substitute our judg-
ment for that of the district court. See, e.g., United States v. Mason, 52
F.3d 1286, 1289 (4th Cir. 1995). I confess that the rule derived from
Mason seems of little practical use, in that any time we disturb a judgment
on abuse-of-discretion grounds we are necessarily substituting what we
consider to be a more sound judgment for that rendered below. What we
really mean is that when two outcomes are each within the realm of rea-
son, we will not substitute our reasonable result for the similarly plausible
one reached by the district court. The question is how much leeway each
of us, as an appellate judge, is willing to give a trial judge in a particular
case. My friend Judge Davis, in his fine dissenting opinion, ably and
cogently illustrates the point through Judge Friendly’s musings and other-
wise. I think we would all agree that, in general, it is a good idea to let
those judges on the front lines dispose of their caseloads without undue
interference from those of us one step removed. But every so often, a case
arises to snap us out of our rubber-stamp reverie, and for me, this is such
a case. I am not content to lend my imprimatur to what occurred below
under the guise of deference; instead, I have found myself stirred to action
against the inertia of affirmance. That I would vacate the order on appeal
stems directly from my definite and firm conviction that the district court
made a clear error of judgment in bypassing the opportunity to easily and
efficiently correct its earlier mistake of law, thereby serving substantial
justice.
44 AIKENS v. INGRAM
district court’s Rule 60(b) Order and remand for such further
proceedings as may be appropriate.

I respectfully dissent, and I am pleased to state that Judge
Motz, Judge Gregory, Judge Davis, and Judge Keenan concur
in this dissenting opinion.

DAVIS, Circuit Judge, dissenting:

I am most pleased to join in full Judge King’s compelling
dissenting opinion. I write to offer a few additional observa-
tions.

Even a most astute student of this court’s jurisprudence
must be forgiven for failing to identify the "rule" of this case.
As best as I can discern, the majority’s admonishment to
counsel facing analogous circumstances in the future seems to
be: "Appeal everything, all the time, right away." One might
question if that is any way to run a (judicial) railroad. Judge
King’s excellent dissent, on the other hand, would have the
salutary effect of encouraging district courts to correct their
own errors when given the opportunity to do so. Here, the dis-
trict court had that opportunity but elected to let it pass. We
should reverse, signaling to district courts around the circuit
that such opportunities should be seized, not abjured.

Despite its publication, and thus its precedential character,
the majority opinion provides district courts with little guid-
ance beyond the bare ruling itself—the highly fact-specific
determination that, under the totality of the circumstances
shown, the district court did not "abuse its discretion" in fail-
ing to find "extraordinary circumstances" under Fed. R. Civ.
P. 60(b)(6). Likewise, there seems scant possibility that a
future three-judge panel of this court will find anything help-
ful here.

We sometimes flash conflicting signals to the district courts
as to how they might best exercise their discretion to adminis-
 AIKENS v. INGRAM 45
ter the Federal Rules of Civil Procedure. Compare Felty v.
Graves–Humpreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)
(declaring "the affirmative obligation of the trial judge to pre-
vent factually unsupported claims and defenses from proceed-
ing to trial [by granting summary judgment]") (internal
quotation marks omitted), with Andrew v. Clark, 561 F.3d
261, 271 (4th Cir. 2009) ("The Advisory Committee Notes
. . . highlight the discretion that district courts are given to
deny summary judgment motions even when the standard
appears to have been met . . . .), and Forest Hills Early Learn-
ing Ctr., Inc. v. Lukhard, 728 F.2d 230, 245 (4th Cir. 1984)
("Even where summary judgment is appropriate on the record
so far made in a case, a court may properly decline, for a vari-
ety of reasons, to grant it.") (citations omitted). But, on the
whole, we endeavor to provide useful guidance to the district
courts in the exercise of their considerable discretion in
administering the civil rules. Regrettably, as Judge King’s
powerful dissent demonstrates, we have failed in that mission
here.

The majority opinion purports to warn against a danger of
"giv[ing] Rule 60(b)(6) broad application" as doing so would
"undermine numerous other rules that favor the finality of
judgments." Ante at 8. It correctly notes that we review the
district court’s ruling for abuse of discretion and that "appeal
from the denial of a motion under Rule 60(b)(6) does not
bring up the underlying judgment for review." Ante at 9 (quot-
ing Browder v. Dir., Dep’t of Corrections of Ill., 434 U.S.
257, 263 n.7 (1978)). Yet the very authorities the majority
opinion cites demonstrate that it is sometimes impossible to
assess the propriety of the district court’s exercise of its con-
siderable discretion without carefully scrutinizing the effect of
its underlying error, and moreover, that simple fairness some-
times requires that the majority’s "very strict interpretation of
Rule 60(b)," ante at 8 (quoting Liljeberg, 486 U.S. at 873
(Rehnquist, C.J., dissenting)), give way to a more expansive
reading.
46 AIKENS v. INGRAM
In its discussion of the standard of review, the majority
cites to two principal cases: Browder and National Credit
Union Admin. Bd. v. Gray, 1 F.3d 262, 265 (4th Cir. 1993).
Ante at 9. Browder adopted the abuse of discretion standard
in a footnote, citing to two circuit court cases. One of those,
Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999
(7th Cir. 1971), actually looked to the merits of the underlying
judgment on grounds of fairness:

While Rule 60(b) is not a substitute for an appeal
and the finality of judgments ought not be disturbed
except on very narrow grounds, a liberal construc-
tion should be given the rule to the end that judg-
ments which are void or are vehicles of injustice not
be left standing. Accordingly, we believe that the cir-
cumstances of this case, including the basis for the
relief sought, are such that we may properly make a
primary inquiry into the legality of the discovery
orders and the procedures leading to the dismissal of
movants’ claims.

450 F.2d at 1003 (internal citations omitted) (emphasis
added). Among these circumstances was the fact that the dis-
trict court employed "the drastic sanction of dismissal of [the
movants’] claims with prejudice." The Seventh Circuit con-
cluded its discussion of the proper standard of review by not-
ing, "Under these circumstances, we believe that principles of
fairness warrant our giving full consideration to the merits of
movants’ arguments." Id. at 1004. The court ultimately
affirmed the denial of the 60(b) motion, but only after deter-
mining that it agreed with the district court on the merits.

Similarly, in National Credit Union, we made clear:

We review denials of Rule 60(b) motions for
abuse of discretion. Werner v. Carbo, 731 F.2d 204,
206 (4th Cir. 1984). "However, where default judg-
ments are at issue, over the years this court has taken
 AIKENS v. INGRAM 47
an increasingly liberal view of Rule 60(b) . . . ."
Augusta Fiberglass Coatings, Inc. v. Fodor Con-
tracting Corp., 843 F.2d 808, 810 (4th Cir. 1988).
Although this case is not technically a default judg-
ment, it resembles one closely enough for the usually
strict standard of review to be tempered somewhat.

1 F.3d at 265 (internal citations omitted) (emphasis added).
There, the movant/defendant was ruled to have admitted all
items in plaintiff’s request for admissions because the lawyer
for a co-defendant, who claimed not to have been representing
the movant, did not enter answers for him. The district court
used these admissions to grant summary judgment to plaintiff
with respect to the movant.

That case contains an interpretation of Rule 60(b)(6) that
again looks to fairness:

We believe this case falls within subsection (b)(6),
a "catchall provision which allows a court to grant
relief for any reason . . . ." Although "[t]he remedy
provided by the Rule . . . is only to be invoked upon
a showing of exceptional circumstances . . . ," Comp-
ton v. Alton Steamship Co., 608 F.2d at 102, we
believe this case cries out for the exercise of that
"equitable power to do justice."

Id. at 266 (emphasis added). The court went on to remand
with instructions to vacate the underlying judgments.

Of course there are times when the facts surrounding con-
sideration of a Rule 60(b) motion are such that a district court
must slam shut the courthouse door to a potentially deserving
claimant. But, there are other occasions when a district court
may, but is not required, to slam shut that door, and the deci-
sion lies within the ambit of the district court’s discretion.
Whatever the district court’s decision, we are to reverse only
for an abuse of discretion. Yet, by the light of the very cases
48 AIKENS v. INGRAM
relied upon by the majority opinion to establish that standard
of review, one can see that the equities in a given case may
demand that we "temper[ ] somewhat" our "usually strict stan-
dard of review" and "exercise . . . [our] equitable power to do
justice." Id. at 265-66.

Any suggestion that the "abuse of discretion" standard of
review is some immutable mandate that ties the hands of
appellate courts was convincingly debunked nearly thirty
years ago by Judge Friendly:

When we look at the spectrum of trial court deci-
sions, we find a wide variance in the deference
accorded to them by appellate courts. In some
instances the trial court is accorded broad, virtually
unreviewable discretion . . . . In others, the trial
judge’s decision is accorded no deference beyond its
persuasive power . . . . Our concern is with determi-
nations where the scope of review falls somewhere
between these extremes. How much deference
should be accorded to various determinations along
this continuum? Just as the answer to the constitu-
tional inquiry "what process is due?" depends upon
the costs and benefits of procedural safeguards in
different instances, defining the proper scope of
review of trial court determinations requires consid-
ering in each situation the benefits of closer appellate
scrutiny as compared to those of greater deference.

Henry J. Friendly, Indiscretion About Discretion, 31 Emory
L.J. 747, 755-56 (1982) (footnotes omitted). Disregard of this
long-accepted reality runs a grave risk that substantial justice
will be denied to those prejudiced by well-meaning district
courts and well-intentioned appellate courts.

Thus, where, as here, a district court exercises its discretion
in a case-dispositive manner, this court should scrutinize the
exercise of that discretion with care to ensure that there has
 AIKENS v. INGRAM 49
not been "an error of judgment" by the district court. Wilson
v. Volkswagen of Am., Inc., 561 F.2d 494, 506 (4th Cir. 1977)
(warning against the threat of becoming a "rubber stamp" as
to dispositive, "door-slamming" orders of district courts).
Where, as here, such a prejudicial error of judgment comes
before us, we should correct the error. This approach is in
keeping with this court’s strong preference that cases be
decided on their merits. Cf. Colleton Preparatory Acad., Inc.
v. Hoover Universal, Inc., 616 F.3d 413, 417 n.3 (4th Cir.
2010) ("[W]e have long adhered to the sound public policy of
deciding cases on their merits, . . . and not depriving . . . part-
[ies] of [their] fair day in court.") (citations and internal quo-
tations omitted).

Manifestly, no matter how ample a court’s discretion, some
decisions will fall outside of it. The fabric of the law may
have many swatches of stubborn indeterminacy, but some
legal questions really have a right answer, even when their
resolution is committed to a court’s discretion. And though in
some familiar contexts legal error may survive federal appel-
late review, e.g., Harrington v. Richter, ___ U.S. ___, 131 S.
Ct. 770, 786 (2011) (noting that the Antiterrorism and Effec-
tive Death Penalty Act shields erroneous state court applica-
tions of federal law unless "there is no possibility fair-minded
jurists could disagree that the state court’s decision conflicts
with [the Supreme] Court’s precedents"), here we exercise
direct review of our own lower court’s application of federal
law. See Kim McLane Wardlaw, Umpires, Empathy, and
Activism: Lessons from Judge Cardozo, 85 Notre Dame L.
Rev. 1629, 1634 (2010) ("A swing and a miss is a strike, and
the umpire lacks discretion to call it otherwise.").

The Supreme Court recently reminded us that "[a] trial
court has wide discretion when, but only when, it calls the
game by the right rules." Fox v. Rice, No. 10-114, 2011 WL
2175211, *8 (U.S. June 6, 2011). In this instance, the district
court’s erroneous dismissal of the case in reliance on a
requirement that Colonel Aikens exhaust a non-existent
50 AIKENS v. INGRAM
administrative remedy, coupled with its subsequent refusal to
undo that erroneous order despite the availability of a specific
rule of civil procedure designed precisely as a balm for such
judicially-inflicted wounds, constituted a failure to "call[ ] the
game by the right rules" and thus an abuse of its "wide discre-
tion." Id.

Assessing an exercise of discretion, every bit as much as
exercising discretion in the first instance, is, like calling balls
and strikes, an art and not a science. If indeed we are some-
times "umpires," the en banc court, like the panels of this
court, most often gets it right, but it sometimes makes the
wrong call. Because, for the reasons stated so persuasively by
Judge King, the en banc majority’s decision in this case must
be recorded in the "wrong call" column, I respectfully dissent.