United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 7, 2006 Decided March 6, 2007
No. 05-5385
MARK LEE KRAMER, ET AL.,
APPELLEES
V.
ROBERT M. GATES, SECRETARY, DEPARTMENT OF DEFENSE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 96cv00497)
Michael J. Ryan, Assistant U.S. Attorney, argued the
cause for appellant. On the briefs were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, R. Craig
Lawrence, Assistant U.S. Attorney, and Kevin K. Robitaille,
Special Assistant U.S. Attorney.
Daniel M. Schember argued the cause and filed the brief
for appellee.
Before: BROWN and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: The five plaintiffs here
are civilians who were employed as National Guard
Technicians in the Department of Defense until their
involuntary separation from service in 1993 and 1994. The
then-effective version of 5 U.S.C. § 3329 provided that
employees such as plaintiffs who were involuntarily separated
“shall, if appropriate written application is submitted within 1
year after the date of separation, be offered a position . . . not
later than 6 months after the date of the application.” 5 U.S.C.
§ 3329(b) (1992). Specifically, such technicians were entitled
to a competitive service position in the Department of Defense
for which the rate of basic pay was to be “not less than the
rate last received for technician service before separation.” 5
U.S.C. § 3329(c)(4) (1992).
Although plaintiffs submitted timely applications, the
Secretary of Defense failed to offer them appropriate positions
within the statutory time limit. In 1996 plaintiffs brought suit
in district court seeking equitable relief to enforce the
provisions of § 3329. The district court in due course found
that plaintiffs could bring suit in light of the partial waiver of
sovereign immunity in the APA, which permits district courts
to grant “relief other than money damages,” 5 U.S.C. § 702,
reasoning that plaintiffs sought only equitable relief that was,
in the language of our cases, “not negligible in comparison
with the potential monetary recovery.” See Kramer v. Cohen,
Civ. Action No. 96-497, Memorandum Order at 4 (D.D.C.
Apr. 8, 1997); Kidwell v. Department of Army, Board for
Correction of Military Records, 56 F.3d 279, 284 (D.C. Cir.
1995) (internal quotation marks omitted). On the merits the
court concluded that § 3329 impliedly gave plaintiffs a right
of action. Kramer v. Secretary of Defense, 39 F. Supp. 2d 54,
57–59 (D.D.C. 1999). Accordingly, the court issued a
3
judgment ordering the defendants to change “the effective
date” of each plaintiff’s “competitive service appointment” to
a specified date six months after the submission of their
respective applications. The Secretary did not appeal.
One plaintiff (Ainslie) brought suit in the Court of
Federal Claims in 2001, seeking back pay for the period from
July 31, 1995 through January 7, 1996—the time between the
dates of his retroactive appointment and of his actual
reemployment with the Department. The Tucker Act waived
sovereign immunity for the claim, 28 U.S.C. § 1491, and the
cause of action rested on the Back Pay Act, 5 U.S.C. §
5596(b)(1), which affords an agency “employee” back pay to
correct certain “unjustified or unwarranted personnel
action[s].” The Court of Federal Claims observed that under 5
U.S.C. § 2105(a) an “employee” for purposes of Title 5 must
not only have been “appointed” in the civil service (as were
the five plaintiffs, per the district court’s order), but must have
fulfilled two additional requirements—have been (1)
“engaged in the performance of a Federal function under
authority of law or an Executive act” (2) while being “subject
to the supervision” of a specified class of officials. Because
Ainslie had not satisfied the additional requirements, the court
denied his claim. Ainslie v. United States, 55 Fed. Cl. 103,
106–08 (2003). The Federal Circuit affirmed this denial,
observing that “Ainslie seeks to erase the distinction between
being appointed and being employed.” Ainslie v. United
States, 355 F.3d 1371, 1374 (Fed. Cir. 2004). Ainslie fared no
better under § 3329. The Federal Circuit noted that § 3329
“contains no remedial language to recover money damages if
the federal government fails to comply with the statute,” id. at
1375, and accordingly rejected the idea that it provided an
implied right to such recovery.
In light of Ainslie’s lack of success before the Court of
Federal Claims and the Federal Circuit, all of the plaintiffs
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returned to the district court in 2005 seeking clarification of
its 1999 order. Under Federal Rule of Civil Procedure
60(b)(6), “[o]n motion and upon such terms as are just, the
court may relieve a party . . . from a final judgment, order, or
proceeding for . . . any . . . reason justifying relief from the
operation of the judgment.” The court granted plaintiffs’
motion and said:
Insofar as the court’s previous order was interpreted to
provide for only a change in the date of “appointment”
rather than the date of “employment,” the court is now
stating with “redundant clarity” that it intends for
plaintiffs to be deemed employed as well as appointed on
the dates they would have been employed had defendant
not violated 5 U.S.C. § 3329.
Kramer v. Rumsfeld, Civ. Action No. 96-00497, Order at 2
(D.D.C. Aug. 9, 2005).
Because relief under Rule 60(b)(6) is appropriate only in
“extraordinary circumstances,” Ackermann v. United States,
340 U.S. 193, 199 (1950), and such circumstances were
lacking with respect to all plaintiffs except Fangerow (in
regard to a portion of the relief granted him), we vacate the
district court’s order except for the relief afforded Fangerow
that falls properly within Rule 60(b)(6).
* * *
With one exception unique to plaintiff Fangerow, we
resolve this case on the ground that the district court
improperly exercised its authority to reopen a final judgment
and award relief under Rule 60(b)(6). Consequently, we need
not reach the larger jurisdictional question—whether the
district court’s 2005 order was in essence an award of money
damages in contravention of 5 U.S.C. § 702. Before we can
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reach this conclusion, though, we must answer two antecedent
questions. First, can a federal court, consistent with Steel
Company v. Citizens for a Better Environment, 523 U.S. 83
(1998), resolve a case on procedural grounds before
addressing a statutory obstacle to subject-matter jurisdiction?
Second, since the Secretary at no point has objected to the
district court’s authority to grant a Rule 60(b)(6) motion in
these circumstances, may we raise the issue on our own? The
answer is yes to both questions.
Steel Company makes clear that jurisdiction is a
“threshold matter,” id. at 94, and that a “federal appellate
court has a special obligation to satisfy itself not only of its
own jurisdiction, but also that of the lower courts in a cause
under review,” id. at 95 (internal quotation marks omitted).
We have from the outset understood the decision’s principal
concern to be assurance that courts exercise their “power to
declare the law,” id. at 94, only if possessed of jurisdiction. In
re Papandreou, 139 F.3d 247, 255 (D.C. Cir. 1998) (“a court
that dismisses on other non-merits grounds . . ., before finding
subject-matter jurisdiction, makes no assumption of law-
declaring power that violates the separation of powers
principles underlying . . . Steel Company.”). See also Galvan
v. Federal Prison Industries, Inc., 199 F.3d 461, 463 (D.C.
Cir. 1999); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
584–85 (1999). We have considerable doubt whether an
interpretation of the limits of Rule 60(b)(6) qualifies as an
exercise of a court’s law-declaring power as Steel Company
used the concept, as the scope of Rule 60(b)(6) is far removed
from any effect on primary conduct. Compare Hanna v.
Plumer, 380 U.S. 460, 475 (1965) (Harlan, J., concurring)
(classifying rules affecting “primary decisions respecting
human conduct” as substantive for purposes of Erie Railroad
Co. v. Tompkins, 304 U.S. 64 (1938)).
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But even if a reading of Rule 60(b)(6) should be the sort
of law-declaring activity that courts must avoid until resolving
the issues made primary by Steel Company, those primary
issues related to Article III jurisdiction, not, as here, to a
statutory limit (even one classified as jurisdictional for many
purposes). Steel Company explicitly recognized the propriety
of addressing the merits where doing so made it possible to
avoid a doubtful issue of statutory jurisdiction; the case
excluded such jurisdiction from the rule of absolute priority
that it established for Article III jurisdiction. See Steel
Company, 523 U.S. at 96–97 & n.2. Because there is no
Article III issue here, but only an uncertainty as to the scope
of the waiver in 5 U.S.C. § 702, Steel Company poses no bar
to considering the application of Rule 60(b)(6).
Next, we must address whether we may resolve this case
on the impropriety of Rule 60(b)(6) relief when the appellant
failed to raise such an objection. Ordinarily we do not
consider non-jurisdictional issues that litigants didn’t raise and
that the district court didn’t resolve. United States ex rel.
Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir.
2004). But we have authority to raise issues on our own
motion when “the errors are obvious, or if they otherwise
seriously affect the fairness, integrity, or public reputation of
judicial proceedings.” United States v. TDC Management
Corp., 288 F.3d 421, 425 (D.C. Cir. 2002) (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936)). As we explain
in greater detail below, clear Supreme Court and circuit
precedent rendered Rule 60(b)(6) relief inappropriate (except
as to the portions of the decree unique to Fangerow).
The Supreme Court has noted that courts should grant
Rule 60(b)(6) motions only in “extraordinary circumstances.”
Ackermann, 340 U.S. at 199. See also Gonzalez v. Crosby,
545 U.S. 524, 535 (2005). We have similarly observed that
Rule 60(b)(6) “should be only sparingly used” and may not
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“be employed simply to rescue a litigant from strategic
choices that later turn out to be improvident.” Good Luck
Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir.
1980). For instance, the Supreme Court has held that
“extraordinary circumstances” are not present when in
hindsight it appears certain that an appeal, which was not
taken, would have been successful, Ackermann, 340 U.S. at
197–99, or when there has been an intervening change in case
law, Gonzalez, 545 U.S. at 536–38; Agostini v. Felton, 521
U.S. 203, 239 (1997). The Court has underscored the
stringency of the Rule by holding that the catch-all provision,
Rule 60(b)(6), is mutually exclusive with the grounds for
relief in the other provisions of Rule 60(b), which include
excusable neglect, newly discovered evidence, and fraud, all
three of which require that the motion be brought within one
year of the judgment from which relief is sought. See Pioneer
Investment Services Co. v. Brunswick Associates Ltd.
Partnership, 507 U.S. 380, 393 (1993). In short, plaintiffs
must clear a very high bar to obtain relief under Rule 60(b)(6).
Here, plaintiffs’ 1999 complaint sought only “appointment,”
not “employment,” despite an array of cases drawing a critical
distinction between the two. Plaintiffs have failed to identify
any reason why they could not have requested “employment”
at the outset. Although the failure to request an order of
“employment” here may not have been strategic in the
strictest sense of the term, it was clearly a litigation choice
that “turn[ed] out to be improvident” and one from which we
cannot rescue the plaintiffs. The case law makes clear that
Rule 60(b)(6) is not an opportunity for unsuccessful litigants
to take a mulligan.
For purposes of plaintiffs’ hoped-for recovery under the
Back Pay Act the retroactive “appointment” they initially
sought could not possibly have constituted “employment.”
The Back Pay Act defines an “employee” as someone who
has been appointed to the civil service, engaged in the
8
performance of a federal function, and done so under the
supervision of an appropriate appointing authority, as defined
by the statute. 5 U.S.C. § 2105(a). The difference between
“employment” and “appointment” is more than semantic.
Someone who has received appointment might “never achieve
the status of employee,” Ainslie, 355 F.3d at 1374 (quoting
McCarley v. Merit Systems Protection Board, 757 F.2d 278,
280 (Fed. Cir. 1985)). Like the Federal Circuit, we have long
recognized the distinction between the two concepts. See,
e.g., National Treasury Employees Union v. Reagan, 663 F.2d
239, 246 (D.C. Cir. 1981).
Further, although we need not resolve the point,
plaintiffs’ omission of any request for an order declaring that
they had met the other two criteria for classification as an
“employee” under 5 U.S.C. § 2105(a) may well have been
strategic. It may have been designed either to obscure their
goal of compensation under the Back Pay Act (and thus to
enhance their argument that the relief sought in district court
was “not negligible in comparison with the potential monetary
recovery,” Kidwell, 56 F.3d at 284 (internal quotation marks
omitted)), or to divert attention from their apparent absence of
any intent to make up for the work they would have
performed had they actually been “engaged in the
performance of a Federal function,” 5 U.S.C. § 2105(a)(2),
during the disputed periods. In any event, as the need to seek
this classification was entirely obvious from the outset, there
was no occasion to use Rule 60(b)(6) to fill the gap
retroactively.
The portions of the district court’s Rule 60(b)(6) order
unique to Fangerow pose a different issue. The court ordered
the Secretary to offer Fangerow an appropriate “permanent,
non-term appointment” and further ordered that the Secretary
“shall not condition plaintiff’s acceptance of the appointment
upon repayment of his early retirement incentive payment,
9
and plaintiff shall not be required to repay that payment to the
government.” Kramer v. Rumsfeld, Civ. Action No. 96-
00497, Order at 3 (D.D.C. Aug. 9, 2005).
This element of the order (rejection of the government’s
purported condition) rested on a peculiarity of Fangerow’s
case that plaintiffs’ counsel explained in seeking Rule
60(b)(6) relief. As had the other plaintiffs, Fangerow received
an offer of appointment based on the district court’s 1999
order. But “defendant informed plaintiff Fangerow that if
defendant were to offer and Fangerow were to accept the offer
required by . . . the Court’s [1999] judgment, defendant would
make Fangerow’s appointment a four-year term appointment.
Defendant then said that term appointees are not eligible for
early retirement incentive payments and that, because
Fangerow previously had accepted a $25,000 early retirement
incentive, he would have to return the $25,000 to the
government in order to receive the relief the Court had
ordered.” Memorandum in Support of Plaintiffs’ Motion at 5
n.2, Kramer v. Secretary of Defense, Civ. Action No. 96-
00497 (D.D.C. Aug. 9, 2005).
These are extraordinary circumstances that justify relief
under Rule 60(b)(6). Fangerow had independently received
an early retirement incentive and, later, a court-ordered offer
of appointment. But the Secretary indicated that he would
only conditionally comply with the district court’s order—i.e.,
only if Fangerow forfeited the early retirement incentive. If a
plaintiff receives a judgment, the liable party cannot normally
attach conditions to its fulfillment of the judgment; otherwise,
parties could willfully flout a court’s legitimate authority.
Here, so far as appears, Fangerow had no reason to think that
the government would try to condition its compliance with the
initial court order. Rule 60(b)(6) was thus an appropriate
avenue for him to seek and the court to grant clarification that
the offer of appointment was indeed independent of any
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earlier remuneration or incentive that Fangerow had received.
(We express no opinion, however, on the merits of the
modification, which the government does not challenge.) To
the extent that the pertinent segments of the 2005 order (the
first two sentences of paragraph 5) merely resolve this newly
arising problem, the district court properly exercised its
authority under Rule 60(b)(6). Furthermore, there can be no
jurisdictional objection to the court’s authority to issue the
clarification, as the court granted no additional relief but
simply instructed the Secretary that he must unconditionally
abide by the court’s 1999 order. As noted above, however,
the use of Rule 60(b)(6) to award Fangerow retroactive
“employment” was outside the legitimate use of the Rule.
* * *
The district court’s 2005 order is, except with respect to
the first two sentences of paragraph 5 (relating to plaintiff
Fangerow’s early retirement incentive), hereby vacated as
improper under Federal Rule of Civil Procedure 60(b)(6); the
order is affirmed as to the first two sentences of paragraph 5.
So ordered.