dissenting.
If this case involved only the issue whether a reversal of the precedent of an unrelated case can serve as the basis of a Rule 60(b)(5) motion, then the majority's conclusion would be unremarkable. But the procedural history of this action and the record before us establish that the district court always considered that Harris’ right to be evaluated under the more favorable parole guidelines was inextricably interwoven with the Forman litigation that was winding its way up to and back from this court several times. Because the Parole Commission undertook, for Harris’ benefit, to follow this court’s intermediate ruling in Forman I rather than unnecessarily duplicating proceedings on an issue which it was actively litigating, the majority holds that this court’s Forman III decision cannot be applied to Harris. I do not believe that Rule 60(b)(5) should be interpreted so narrowly as to mandate this result.
Counsel and the court continuously treated the Harris and Forman cases, both of which were being litigated in the same district court at about the same time, as intertwined. Harris’ original petitions for writs of habeas corpus and mandamus filed in the Middle District of Pennsylvania expressly relied on this court’s decision in Forman I for his claim that the Commission’s use of the guidelines in effect at the time of Harris' hearing, rather than those in effect at the time of his offense, constituted an ex post facto violation.
*367Similarly, in its opinion in support of its December 12, 1984 order requiring redeter-mination of Harris’ parole, the district court referred to the Commission’s “refusal ... to follow the law as it now stands relative to which standards must be used to determine when a given inmate becomes eligible for parole.” Harris v. Martin, Civil No. 84-0823, slip op. at 2 (M.D.Pa. Dec. 12, 1984), App. at 28. [Available on WESTLAW, 1984 WL 3205]. This law, the court stated, “is set out in United States ex rel. Forman v. McCall, M.D.Pa. Civil No. 81-0553, a decision rendered by this Court on September 14, 1984.” Id., App. at 28. The court reprimanded the Commission for its failure to follow that law, stating:
We would remind the [Commission] that the law provides otherwise until such time as our decision in Forman is reversed. It is a familiar principle that it has become clear in the federal courts that res judicata ordinarily attaches to a final lower court judgment even though an appeal has been taken and remains undecided.”
Id. at 3 (quoting C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 4427 at 270 (1981)), App. at 29. “In accord with this concept,” the court issued its order requiring a new hearing for Harris. Id., App. at 29.
Thus, the district court’s December 12, 1984 judgment was clearly based on the court’s prior judgment in Forman within the meaning of Rule 60(b)(5). Forman was not relied on solely as precedential support, as the majority states. Rather, the district court relied on Forman as creating the cause of action asserted by Harris, namely a cause of action based on the ex post facto clause as precluding retroactive application of the guidelines. In fact, Forman was the sole basis for the court’s decision in Harris.
Although the district court may have erred in believing, as it stated, that its Forman decision had a “res judicata ” effect on Harris’ case, its statement is further evidence that it was giving its prior decision in Forman more weight than mere legal precedent in its decision in Harris and indeed was relying on Forman as a “prior judgment.” Our reversal of For-man II in effect removed the sole basis for that court’s December 12, 1984 judgment.
Concededly, the Commission did not appeal the district court’s December 12, 1984 order requiring it to redetermine Harris’ parole eligibility date in conformance with Forman II. However, such an appeal would have been duplicative. The exact issue presented in Harris was before this court on the Commission’s appeal of For-man II where the district court had held the guidelines were “laws” within the meaning of the ex post facto clause. It was apparent that our decision when announced would bind the district courts and the Commission within this circuit.
In such circumstances, there is no sound policy basis for requiring the Commission to appeal or seek a stay in every intermediate decision entered during the pendency of its own appeal. Such a requirement would create a backlog for the Commission of uncompleted and uncompletable parole decisions, delay parole determinations for any inmates whose hearings were put off pending the appellate decision, and clog the courts with essentially meaningless paperwork. Instead of appealing, the Commission proceeded to conduct a new hearing for Harris, at the same time explicitly advising him in its notice of action that his case might be reopened if the district court’s decision in Forman is overturned. When Harris appealed his new parole release date to this court we found that the Commission had not abused its discretion, and expressly noted the Commission’s reservation since by then Forman III had been announced. Harris v. Martin, 792 F.2d 52 (3d Cir.1986).
The Commission’s action in this case was much preferable than an unnecessary appeal, which as the majority notes would have undoubtedly resulted in a stay of further action. This is thus not a case like Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950), relied on in Marshall v. Board of Education of Bergenfield, N.J., 575 F.2d 417, 424 (3d Cir. 1978), where the party’s failure to appeal represented a “calculated and deliberate” risk based on a belief that the appeal would not “prove to be worth what [the prospective appellant] thought was a required sac*368rifice.” 340 U.S. at 198, 71 S.Ct. at 211. The Commission’s decision not to appeal but to comply with the district court’s directive to redetermine Harris’ parole status until the legal issue was finally resolved by the appeal of Forman II not only saved the Commission the effort of an appeal but also served the interests of the courts. Moreover, the failure to appeal did not harm Harris. Rather, his interests were served better by reopening his parole decision than by an appeal. In such special circumstances, the Commission’s failure to appeal should not be held against it in its subsequent motion for relief.1
Because I see no reason why Harris’ parole eligibility should be determined under guidelines which this court has held are inapplicable, I respectfully dissent.2
. In United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984), the Court refused to allow the use of an unappealed district court opinion as the basis for application of non-mutual collateral estoppel against the government. At least in part, this decision was based on the different concerns faced by private litigants as compared with the government in determining when to pursue an appeal. Among those concerns, the Court recognized “the limited resources of the Government and the crowded dockets of the courts." Id. at 161, 104 S.Ct. at 573. The Court believed that application of non-mutual estoppel against the government would force the government to abandon those prudential concerns and “to appeal every adverse decision in order to avoid foreclosing further review." Id. Similar concerns are presented here. To deny the Commission the possibility of relief on the basis of a failure to appeal would lead the Commission to ignore the concerns mentioned by the Court and to pursue duplicative appeals.
. The majority fails to cite any authority for the proposition in footnote 11 of the majority opinion that a prospective release on parole does not have "prospective application” within the meaning of F.R.Civ.P. 60(b)(5), and its analysis is not convincing. Inexplicably, the Commission has not made an argument based on that clause.