Restricting the Ackermann Rule
This article is reprinted with permission from the Nov. 9, 2012 edition of The Recorder.
by Scott Dodson
Rule 60(b) of the Federal Rules of Civil Procedure provides that on motion and under just terms, a court may relieve a party from a final judgment or order. The rule rightly seeks to balance the interest in the finality of judgments (which secures the peace and repose of society) with the interest of doing justice when circumstances demand it.
The rule enumerates five specific reasons (including mistake, newly discovered evidence, fraud, lack of jurisdiction and judgment satisfaction) that are, for the most part, uncontroversial because they identify circumstances in which justice or systemic concerns clearly outweigh the need for finality. And in a nod to finality, these enumerated provisions are further limited by timing restrictions that require a Rule 60(b) motion to be brought within a reasonable time.
Rule 60(b) includes a sixth ground for relief, however, a catchall provision that is far more problematic and controversial. Rule 60(b)(6) allows relief for "any other reason that justifies relief." This provision's open-endedness provides little guidance to courts charged with balancing justice against finality in circumstances not contemplated by the other enumerated circumstances set forth in the rule.
The Supreme Court has provided guidance by circumscribing opportunities for relief under Rule 60(b)(6). In Klapprott v. United States, 335 U.S. 601 (1949), the court held that Rule 60(b)(6) relief could be granted only if the movant showed "extraordinary circumstances" warranting relief. And in Ackermann v. United States, 340 U.S. 193 (1950), the court held that even extraordinary circumstances might not be enough if the movant's deliberate litigation choices caused them.
At its broadest, this co-called Ackermann rule could bar Rule 60(b)(6) relief any time a litigant chooses a rational litigation strategy that turns out, in hindsight, to be detrimental. That was the interpretation given by the full U.S. Court of Appeals for the Fourth Circuit in Aikens v. Ingram, 652 F.3d 496 (2011). There, a district court dismissed a National Guard colonel's timely claim for failure to exhaust administrative remedies despite the colonel's contention that administrative remedies were unavailable. When the colonel sought relief from the agency, the agency determined that, as the colonel had argued, exhaustion was unavailable as a matter of law. In the meantime, however, the limitations period on the colonel's claim had expired. Accordingly, the colonel sought to reopen his original case under Rule 60(b)(6). When his motion was denied, he appealed, and the Fourth Circuit held that because he had chosen to comply with the district court's exhaustion order instead of appealing or seeking to stay it, the extraordinary circumstances were the colonel's own fault, and relief was foreclosed by the Ackermann rule.
Aikens construes the Ackermann rule too broadly. Aikens essentially requires a litigant to choose among reasonable litigation options with perfect foresight. True, Aikens could have appealed, but it is possible that the Fourth Circuit would have affirmed. True, too, he could have sought a stay while he tried to exhaust, but because stays are discretionary, he was not guaranteed a better result. Had he sat on his laurels, a court might be justified in preventing him from later moving to reopen his case. But he instead actively pursued his legal rights in the administrative forum directed by the district court. That was a choice, but it was not an unreasonable one, and it was not one that should deprive him of Rule 60(b)(6) relief. If all deliberate litigation choices bar relief, then, as Judge King wrote in dissent, it is hard to fathom when Rule 60(b)(6) would be available.
The Ackermann rule instead should apply in a more limited way: only when a litigant voluntarily and deliberately chooses to abandon or relinquish her legal rights. In such cases, the interests of finality are strong, and the interests of justice are weak. A litigant who chooses one rational way to continue pursuing her legal rights, however, presents a different balance. Then, the finality interests are weaker, and the justice interests are stronger. In those circumstances, a court ought not be barred from granting relief if extraordinary circumstances justifying it are present.
Limiting the Ackermann rule to instances in which the litigant deliberately chooses to abandon his or her legal rights is consistent with Supreme Court precedent. Ackermann itself was a case in which a litigant lost on the merits and made the cost-conscious decision not to appeal. Similarly, in Polites v. United States, 364 U.S. 426 (1960), and Gonzalez v. Crosby, 545 U.S. 524 (2005), the litigant either stipulated to a voluntary dismissal of his appeal or failed to appeal and only moved for Rule 60(b)(6) relief after a supervening change in the law. In each case, denial of Rule 60(b)(6) relief was barred by the Ackermann rule because the movant deliberately abandoned or relinquished his claims and did not pursue them in another legal forum.
Despite the prevalence of Rule 60(b)(6) opportunities, the Ninth Circuit has confronted the Ackermann rule infrequently. But the Ninth Circuit's few published opinions applying the extraordinary circumstances doctrine have been in cases, like those confronted by the Supreme Court, in which the movant deliberately chose not to pursue his or her legal rights. These circumstances are consistent with the more limited Ackermann rule.
District courts in California, then, should consider rejecting the broad rule as set out in Aikens and instead adopt a narrow construction of the Ackermann rule that applies only when the movant deliberately abandons or relinquishes her legal rights. Such a rule is consistent with precedent, the realities of litigation, and the spirit of Rule 60(b)(6).
Scott Dodson is a professor at UC-Hastings law school and has served in a number of cases as an expert in civil procedure. He is the author of two books and more than 25 articles, including, most recently, "Rethinking Extraordinary Circumstances," 106 NW. U. L. REV. 101 (2012).
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