Harris v. Martin, 86-5869

• Citation: 834 F.2d 361
• Decision Date: 22 February 1988
• Docket Number: No. 86-5869,86-5869
• Parties: HARRIS, Roy, Appellant, v. MARTIN, Robert L., Supt., Allenwood F.P.C. HARRIS, Roy, Appellant, v. UNITED STATES PAROLE COMMISSION.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 361

834 F.2d 361

9 Fed.R.Serv.3d 1328

HARRIS, Roy, Appellant, v. MARTIN, Robert L., Supt., Allenwood F.P.C.

HARRIS, Roy, Appellant, v. UNITED STATES PAROLE COMMISSION.

No. 86-5869.

United States Court of Appeals, Third Circuit.

Argued July 16, 1987.

Decided Nov. 30, 1987.

Rehearing Denied Feb. 22, 1988.

Cheryl J. Sturm (argued), Wayne, Pa., for appellant.

James J. West, U.S. Atty., Barbara L. Kosik, Asst. U.S. Atty., Henry J. Sadowski (argued), Scranton, Pa., for appellee.

Before SLOVITER, STAPLETON, and HUNTER, Circuit Judges.

STAPLETON, Circuit Judge.

This case presents the question of whether the "prior judgment" clause of Fed.R.Civ.P. 60(b)(5) ¹ entitles a government agency to relief from a final and unappealed adverse judgment where the opinion supporting that judgment relies upon the holding in another case that the agency subsequently succeeds in overturning. The district court held that the agency was entitled to relief. We will reverse.

I.

Following conviction on narcotics offenses, Roy Harris was sentenced in 1981 to twelve years' imprisonment and a ten-year special parole term. ² In 1984, the examiner panel, using the parole guidelines in effect at the time of the initial hearing, determined that Harris should be required to serve in excess of 100 months, ³ and finding no reason to go outside the guidelines, recommended that Harris be continued to the expiration of his sentence. In effect, this recommendation amounted to a requirement that Harris serve 96 months. ⁴ The examiners' recommendation was ultimately affirmed by the National Appeal Board of United States Parole Commission (the Commission). ⁵

At the time of Harris' initial parole hearing, we had decided in United States ex rel. Forman v. McCall, 709 F.2d 852, 862 (3d Cir.1983) (Forman I ), that the Commission's application of the parole guidelines in effect at the time of the hearing rather than the guidelines in effect at the time of the offense might violate the ex post facto clause of the Constitution if the guidelines were considered "laws." We remanded the case to the district court in the Middle District of Pennsylvania for a factual determination "on the fullest possible record" of whether the Commission retained "substantial flexibility" in exercising its discretion in applying the guidelines, which would demonstrate that the guidelines are not "laws." Id.

Shortly after his initial parole hearing, Harris sought writs of habeas corpus and mandamus in the Middle District of Pennsylvania, ⁶ contending, on the basis of Forman I, 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.

By the time Harris had exhausted his administrative remedies, the district court had issued its opinion on remand in Forman holding that the guidelines were "laws" within the meaning of the ex post facto clause. United States ex rel. Forman v. McCall, Civil No. 81-0553 (M.D.Pa. Sept. 14, 1984) (Forman II ) . The Commission appealed that decision.

Relying on Forman II, the district court in Harris' case ordered the Commission to conduct "a new parole hearing and to employ therein the parole guidelines extant at the time of [Harris'] offense." Harris v. Martin, Civil Nos. 84-0823, 84-0840, slip op. at 5-6 (M.D.Pa. Dec. 12, 1984) , App. at 30-31. Although the Commission's appeal of Forman II was then pending, the Commission did not appeal the December 12, 1984 injunctive judgment in Harris' case. Instead, the Commission complied with the December 12, 1984 order and conducted a new hearing for Harris on February 13, 1985, applying the guidelines existing at the time of Harris' offense. The examiner panel recommended service of 66 months before parole. Ultimately the National Commissioners voted to release Harris after 76 months. ⁷ Harris then appealed to this court and, finding that the Commission had not abused its discretion, we affirmed the district court. Harris v. Martin, 792 F.2d 52 (3d Cir.1986).

In the interim, this court had reversed the district court's decision in Forman II and held that the guidelines were not "laws" within the meaning of the ex post facto clause. United States ex rel. Forman v. McCall, 776 F.2d 1156 (3d Cir.1985), cert. denied, 476 U.S. 1119, 106 S.Ct. 1981, 90 L.Ed.2d 663 (1986) (Forman III ). ⁸ Thereafter, on April 1, 1986, at a point when the district court's December 12, 1984 judgment in Harris' case had been fully complied with and the 76 month decision had become final, the Commission moved the district court for relief from the December 12, 1984 judgment "on the ground that the prior judgment upon which it was predicated, the decision on remand in [Forman ] ha[d] been reversed." App. at 9. In light of Forman III, the district court granted the Commission's motion, vacated the December 12, 1984 judgment, and reentered judgment for the Commission, thereby permitting the Commission to consider Harris' parole application under the more current guidelines. ⁹ The district court relied on the "prior judgment" clause of Fed.R.Civ.P. 60(b)(5). ¹⁰

Harris appeals from the district court's decision. This court has jurisdiction under 28 U.S.C. Sec. 1291. The standard of review of a district court's grant of relief under Rule 60(b) is abuse of discretion. See Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978); Inmates of Allegheny County Jail v. Wecht, 754 F.2d 120, 127 (3d Cir.1985); Hodge v. Hodge, 621 F.2d 590, 593 (3d Cir.1980) (per curiam).

II.

Motions under Rule 60(b) "may not generally substitute for an appeal." Marshall v. Board of Education of Bergenfield, NJ, 575 F.2d 417, 424 (3d Cir.1978); see also Ackermann v. United States, 340 U.S. 193, 198-99, 71 S.Ct. 209, 211-12, 95 L.Ed. 207 (1950); Kock v. Government of the Virgin Islands, 811 F.2d 240, 246 (3d Cir.1987); Page v. Schweiker, 786 F.2d 150, 154, 158 (3d Cir.1986). Rather, relief under Rule 60(b) is available only under such circumstances that the " 'overriding interest in the finality and repose of judgments may properly be overcome.' " Martinez-McBean v. Government of the Virgin Islands, 562 F.2d 908, 913 (3d Cir.1977) (quoting Mayberry v. Maroney, 558 F.2d 1159, 1164 (3d Cir.1977)); see also Inmates of Allegheny County Jail, 754 F.2d at 127; Hodge, 621 F.2d at 593. For these reasons, the "prior judgment" clause of Rule 60(b)(5) "does not contemplate relief based merely upon precedential evolution." Mayberry, 558 F.2d at 1164; see also 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2863 (1973); Comment, Federal Rule of Civil Procedure 60(b): Standards for Relief from Judgments Due to Changes in Law, 43 U.Chi.L.Rev. 646, 652-56 (1976). Its operation "is limited to cases in which the present judgment is based on the prior judgment in the sense of res judicata or collateral estoppel." Marshall, 575 F.2d at 424 (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2863 (1973)).

We applied these principles in Marshall v. Board of Education of Bergenfield, NJ, 575 F.2d 417, 424 (3d Cir.1978), a case that is controlling here. In Marshall, Secretary of Labor Marshall had successfully sued the Bergenfield school board during the reign of Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968), to enforce compliance with federal wage and hour laws. Judgment had been entered against the board directing future compliance and the payment of $5,570.43 in withheld past wages. The judgment had been affirmed by this court and no effort had been made to seek review from the Supreme Court despite the fact that the controlling issue was then before the Court in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). After Wirtz was overruled by National League of Cities, the board moved under Rule 60(b) for relief from the judgment. The district court granted relief from the prospective operation of the injunction but declined to modify the monetary award. We affirmed, holding that no further relief was authorized by Rules 60(b)(4), 60(b)(5), or 60(b)(6).

We specifically held in Marshall that when a party suffers an adverse judgment, an appeal is necessary to preserve his or her rights even when the same issue is currently before the appellate court in another case. 575 F.2d at 424. In the absence of an appeal, the party who has suffered an adverse judgment may secure relief only from the prospective aspects of that judgment in the event it turns out to rest on an erroneous view of the law. Id. at 425.

In this case, neither res judicata nor collateral estoppel bound the Commission to the Forman II result. Since the parties opposing the Commission were different, the only possible basis for preclusion would have been by application of offensive nonmutual collateral estoppel, a doctrine the Supreme Court has held inapplicable in suits against the government. See United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984). Thus, Forman 's only role in the Harris case was one as precedent. Moreover, like the Wirtz case in Marshall, Forman II was a controlling precedent that was not overturned until after the judgment had been entered and the appeal period had expired. Since the Commission failed to appeal the Harris decision, and since the judgment against the Parole Commission in this case had no prospective effect as of the time the Commission filed its motion, ¹¹ Marshall dictates that the district court erred in granting Rule 60(b)(5) relief.

The fact that the party who failed to appeal from the adverse judgment in Harris was a government agency that was actively litigating the controlling issue in another case does not meaningfully distinguish this case from Marshall. While the school board in Marshall did not have the opportunity to litigate the controlling issue in ...