United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 17, 2005
FOR THE FIFTH CIRCUIT
______________________ Charles R. Fulbruge III
Clerk
No. 03-31010
______________________
UNITED STATES OF AMERICA ex rel. WILLIAM GARIBALDI, CARLOS SAMUEL
Plaintiffs-Appellees
versus
ORLEANS PARISH SCHOOL BOARD
Defendants-Appellants
___________________________________________________
Appeal from the United States District Court for
the Eastern District of Louisiana
___________________________________________________
Before REAVLEY, JONES, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
In the previous appeal in this qui tam action under the False
Claims Act (FCA), Garibaldi I,1 we vacated the plaintiffs’ judgment
on the verdict, and rendered judgment for the Orleans Parish School
Board holding that the board was not a “person” subject to
liability under the FCA. This court’s judgment in that case became
final when the Supreme Court denied certiorari.2 Subsequently, the
1
United States, ex rel. Garibaldi, 244 F.3d 486 (5th cir.
2001).
2
U.S. ex rel. Garibaldi v. Orleans Parish School Bd., 534
U.S. 1078 (2002); rehearing denied 534 U.S. 1172 (2002).
1
Supreme Court, in Cook County v. United States ex rel Chandler,3
held that local governments are “persons” amenable to qui tam
actions under the FCA. Following the Supreme Court’s decision in
Chandler, the plaintiffs filed a motion in the district court for
relief under Rule 60(b)(6) from this court’s final judgment in
Garibaldi I. The district court concluded that Chandler had
overruled Garibaldi I, granted plaintiffs’ motion, and re-entered
its judgment on the verdict for the plaintiffs against the school
board. The school board appealed. We reverse. In the absence of
“extraordinary circumstances,” a change in controlling decisional
law after the finality of a judgment does not warrant reopening the
judgment under Rule 60(b)(6). The circumstances here are not
“extraordinary” because this case is not materially distinguishable
from the “ordinary” case in which a subsequent change in
controlling law is not held to justify relief from a prior final
judgment under Rule 60(b)(6).
Background
The relators brought suit against their employer, the Orleans
Parish School Board, on behalf of the United States for numerous
violations of the False Claims Act, 31 U.S.C. § 3729, et seq. The
jury returned a verdict in favor of the plaintiffs for $22,800,000,
plus $7,850,000 for false claims. The district court subsequently
3
538 U.S. 119 (2003)
2
issued an Amended Judgment reducing the award to $21,899,856, plus
$100,000 for false claims. The relators were awarded 12.5% of the
proceeds.
The school board appealed, arguing principally that as a local
government unit it is not subject to liability under the FCA. This
court agreed, vacated the judgment against the board, and rendered
judgment against the plaintiffs.4 The relators filed a petition
for rehearing and for rehearing en banc, which was denied by this
court.5 The relators then petitioned for certiorari by the United
States Supreme Court. The Supreme Court denied the petition.6
Thereupon, the relators filed a petition for rehearing on
certiorari, alerting the Court to the fact that, since their
petition had been filed, a circuit split had developed between the
Fifth, Third, and Seventh Circuits on the issue of whether local
governments are amenable to suit under the FCA, citing United
States ex rel. Chandler v. Cook County,7 and United States ex rel.
4
Garibaldi I, 244 F.3d 486 (5th Cir. 2001).
5
United States ex rel. Garibaldi v. Orleans Parish School
Bd., 264 F.3d 1143 (5th Cir. 2001).
6
United States ex rel. Garibaldi v. Orleans Parish School
Bd., 534 U.S. 1078 (2002).
7
277 F.3d 969 (7th Cir. 2002)(holding that a county is
subject to liability under the FCA).
3
Dunleavy v. County of Delaware.8 The Supreme Court denied the
board’s petition for rehearing on certiorari and the Garibaldi I
judgment in favor of the board became final on February 25, 2002.9
Four months later, the Supreme Court granted a writ of
certiorari in Chandler, and on March 10, 2003, issued its decision
holding that counties are subject to liability under the FCA.10 In
its opinion, the Supreme Court noted that the Seventh Circuit’s
decision in Chandler, of which the high court approved, conflicted
with the opinions of two other courts of appeals, citing in a
footnote the decision by this circuit in Garibaldi I and the
decision by the Third Circuit in Dunleavy.11 The Supreme Court’s
opinion, however, did not otherwise mention Garibaldi I. On April
23, 2003, the Supreme Court granted a writ of certiorari in
Dunleavy and summarily reversed the decision by the Third Circuit
and remanded for further consideration in light of Chandler.12
On May 12, 2003, the relators in the present case filed a Rule
8
279 F.3d 219 (3d Cir. 2002) (holding that a county is not
subject to liability under the FCA).
9
United States ex rel. Garibaldi v. Orleans Parish School
Bd., 534 U.S. 1172 (2002).
10
Cook County v. United States ex rel Chandler, 538 U.S. 119
(2003).
11
Id. at 125 n.6.
12
United States ex rel. Dunleavy v. County of Delaware, 538
U.S. 918 (2003).
4
60(b)(6) motion for relief from the final judgment entered by this
court. The district court granted the motion and re-entered the
plaintiffs’ judgment on the verdict against the School Board.
Specifically, the district court concluded that the change in
decisional law effected by the Supreme Court’s decision in Chandler
created extraordinary circumstances justifying relief from this
court’s judgment under Rule 60(b)(6) because, among other reasons,
our decision in Garibaldi I was an “integral part” of the Supreme
Court’s decision-making process. The School Board timely appealed.
Discussion
We must decide whether the Supreme Court’s decision in
Chandler combined with the facts of this case gave rise to
“extraordinary circumstances” warranting the district court’s
exercise of its discretion under Rule 60(b)(6) to grant relief from
our final judgment in Garibaldi I.13 Rule 60(b)(6) authorizes a
court to relieve a party from a final judgment for “any...reason
justifying relief” other than a ground covered by clauses (b)(1)
through (b)(5) of the rule.14 Relief under this section, however,
is appropriate only in an “extraordinary situation”15 or “if
13
Picco v. Global Marine Drilling Co., 900 F.3d 846, 849
(5th Cir. 1990)(citing Seven Elves, Inc. v. Eskenzai, 635 F.2d
396, 402 (5th Cir. 1981).
14
Hess v. Cockrell, 281 F.3d 212, 215-16 (5th Cir. 2002).
15
Klapprott v. United States, 335 U.S. 601, 613 (1949).
5
extraordinary circumstances are present.”16 Moreover, “[a] change
in decisional law after entry of judgment does not constitute
exceptional circumstances and is not alone grounds for relief from
a final judgment.”17
In the present case, however, the district court concluded
that “extraordinary circumstances” were created when the Supreme
Court, in Chandler, held that local governments are “persons”
amenable to qui tam actions under the FCA. As the district court
noted, Chandler did more than simply announce new governing
decisional law after Garibaldi I’s finality. The Supreme Court, in
affirming the decision of the Seventh Circuit, expressly stated
that the Seventh Circuit’s holding conflicted with Garibaldi I and
the Third Circuit’s decision in Dunleavy.18 Thus, the district
court reasoned, “[b]ut for Garibaldi [I], there would not have been
the two to one split” giving rise to the Chandler “grant of writs,”
and “the fact that these three cases were all under consideration
at substantially the same time...played a role” as “an integral
16
Batts v. Tow -Motor Forklift Co., 66 F.3d 743, 747-48 (5th
Cir. 1995)(quoting Bailey v. Ryan Stevedoring Co., 894 F.2d 157,
160 (5th Cir. 1990)).
17
Bailey, 894 F.2d at 160.
18
United States ex rel Garibaldi v. Orleans Parish School
Board, 2003 WL 22174241 *6, n.1 (E.D. La. 2003) (citing Chandler,
538 U.S. at 125 n. 6)
6
part” in the “[Supreme Court’s] decision making process.”19
Consequently, the district court decided, this case falls within
the “extraordinary circumstances” recognized by this circuit in
Batts v. Tow -Motor Forklift Co.,20 as justifying Rule 60(b)(6)
relief when “a subsequent court decision is closely related to the
case in question, such as where the Supreme Court resolves a
conflict between another circuit ruling and that case occurs.”21
The present case is not atypical of the many instances in
which the Supreme Court has granted certiorari and rendered a
decision resolving a circuit split. Undoubtedly a large percentage
of them involve most of the elements upon which the district court
relied to characterize the Chandler decision’s impact on Garibaldi
I as one involving “extraordinary circumstances.” After almost
every resolution of a circuit conflict there is a losing litigant
somewhere who could argue similarly for reopening his case because
it was decided erroneously in light of the subsequent Supreme Court
decision. The differences between such cases in terms of the
closeness of the relationship between the decision in the losing
litigant’s case and the subsequent Supreme Court decision,
diligence in filing for relief from judgment, proximate causation
19
Id. at *7.
20
66 F.3d 743, 747 (5th Cir. 1995).
21
Garibaldi, 2003 WL 22174241 *5 (quoting Batts, 66 F.3d at
748, n. 6).
7
of the circuit conflict and the like would appear to be marginal in
the large majority of split resolution situations. For these
reasons, we do not think the present case has any features that
cause it to be exceptional to such a marked extent from other cases
involving resolution of circuit conflicts as to create
“extraordinary circumstances” justifying reopening of the judgment.
An examination of the details of the arguments for reopening
the judgment, which are based upon language in Batts, does not
persuade us either. The statement in Batts that relief from
judgment may be appropriate where the subsequent decision is
closely related to the judgment from which relief is sought, “such
as where the Supreme Court resolves a conflict between another
circuit ruling and that case”,22 was dicta unnecessary to the Batts
holding and so removed from its core that it may not have received
the considered judgment of the whole court.23 Furthermore, Batts
cited the Eleventh Circuit’s decision in Ritter v. Smith,24 a case
that, even if we were to assume or agree presented “extraordinary
circumstances” under Rule 60(b)(6), is clearly distinguishable and
does not persuade us that an exceptional situation prevails here.
22
Batts, 66 F.3d at 748, n. 6 (citing Ritter v. Smith, 811
F.2d at 1402-03).
23
See Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002);
cf. Sarnoff v. American Home Products Corp., 798 F.2d 1075, 1084
(7th Cir. 1986).
24
811 F.2d 1398 (11th Cir. 1987).
8
In Ritter, the Supreme Court’s decision in another case
overruled the Eleventh Circuit’s prior holding that the Alabama
capital sentencing procedure was unconstitutional. The Eleventh
Circuit in Ritter concluded that several additional factors in the
case made the circumstances sufficiently extraordinary to warrant
granting the State of Alabama relief under Rule 60(b)(6) from the
Circuit’s erroneous prior ruling of unconstitutionality and grant
of habeas effectively requiring a new capital sentence hearing.
The additional factors found by the court were: the circuit’s
previous erroneous judgment had not been executed, so that the
greater concomitant interest in the finality of an executed
judgment was not involved; the invalidation of the state’s capital
sentencing procedure and requirement of a new sentencing hearing,
which had not yet occurred, had prospective effects analogous to
those of consent decrees and permanent injunctions that courts
generally recognize may be modified in the light of subsequent
decisional law changes; there was minimal delay between the
finality of the judgment and the motion for Rule 60(b)(6) relief;
the Supreme Court’s supervening decision, Baldwin v. Alabama,25 was
rendered expressly to resolve a conflict between it and the earlier
circuit decision in Ritter; the situation presented was analogous
to that in which two cases are related, not because the Supreme
Court’s decision was rendered to resolve a conflict between them
25
472 U.S. 372 (1985).
9
but because they arose out of the same factual transaction; and
there were considerations of comity which argued for relieving the
state from the federal declaration of unconstitutionality and writ
of habeas corpus that upset the finality of a state court’s
judgment.26
Almost none of the “additional factors” in Ritter is present
here. The considerations of comity for state laws and judicial
decisions are not present in this federal question case. Because of
Donleavy’s conflict with Chandler, Girabaldi I was not essential to
the circuit split, the grant of certiorari, or the Supreme Court’s
resolutory Chandler decision. Girabaldi I’s final judgment is not
apt to have prospective effects analogous to those of an executory
constitutional ruling affecting a state’s capital sentencing
procedures, a consent decree, or a permanent injunction. By the
same token, Garibaldi I’s final judgment effectively rejecting the
plaintiffs’ claims with prejudice is more analogous to a fully
executed judgment than to Ritter’s “unexecuted” judgment;27 and
Garibaldi I does not arise from the same factual transaction as
26
Ritter, 811 F.2d at 1401-03.
27
Generally speaking, final civil judgments having the
effect of res judicata, even if un-executed, are not voided or
affected by a subsequent change in the decisional law on which
they were based. See James Beam Distilling Company v. Georgia,
501 U.S. 529, (1990)(“Of course, retroactivity in civil cases
must be limited by the need for finality . . . once suit is
barred by res judicata or by statutes of limitation or repose, a
new rule cannot reopen the door already closed.”)
10
Chandler’s FCA suit against Cook County, Illinois. The single
factor that Girabldi I and Ritter have in common, minimal delay
between finality and motion for relief, denotes the absence of a
disqualifying factor rather than the presence of an affirmative
one----and is not truly distinctive but may be present in many
cases which do not call for Rule 60(b)(6) relief because
extraordinary circumstances are not present.
Moreover, an extraordinary situation justifying relief from
judgment is not created every time the Supreme Court lists a case
as one that merely contributed to a split between circuits. This
factor should not be dispositive of a Rule 60(b)(6) motion and was
not, in fact, dispositive in Ritter. It is not extraordinary for
the Supreme Court to deny certiorari in a court of appeals case
that it ultimately overrules in the review of a later similar
case.28
As this court stated in Seven Elves Incorporated,29 “the
discretion of the district court is not unbounded, and must be
exercised in light of the balance that is struck by Rule 60(b)(6)
28
See, e.g., Missouri v. Siebert, 124 S. Ct. 2601
(2004)(overturning, among others, the Ninth circuit’s decision in
United States v. Orso, 266 F.3d 1030(9th Cir. 2001) less than two
years after denying a petition for certiorari in that case,
United States v. Orso, 537 U.S. 828 (2002)); Garcia v. United
States, 469 U.S. 70 (1984)(overruling, in effect, United States
v. Rivera, 513 F. 2d 519 (2d Cir.), cert. denied, 423 U.S. 948
(1975)).
29
635 F.2d 396, 402 (5th Cir. 1981).
11
between the desideratum of finality and the demands of justice.” We
conclude that the great desirability of preserving the principle of
finality of judgments preponderates heavily over any claim of
injustice in this case. Disturbing the sanctity of the final
judgment in this case would implicate the doctrine of res judicata
in many other cases in which litigants may seek to reap the benefit
of a change in decisional law after the judgments against them have
become final. The claim of injustice by plaintiffs is undermined
by the fact that they have been treated equally with other
litigants whose judgments became final shortly prior to a change in
decisional law that would have benefitted them had it occurred
while their cases were still open on direct review. No two cases
are truly identical; however, we see no distinguishing features
that make this case so exceptional as to say that it involves
“extraordinary circumstances” calling for Rule 60(b)(6) relief.
For these reasons, we conclude that: the circumstances of
this case do not justify the district court’s use of its discretion
to grant relief under Rule 60(b)(6); the district court’s judgment
is reversed; and the judgment of this court in Girabaldi I is
reinstated.
It Is So Ordered.
* * *
12
1
13
United States Ex Rel. Garibaldi v. Orleans Parish School Board
Court: Court of Appeals for the Fifth Circuit
Date filed: 2005-01-17
Citations: 397 F.3d 334
Copy CitationsCombined Opinion