De Filippis v. U.S.

• Citation: 567 F.2d 341
• Decision Date: 05 December 1977
• Docket Number: No. 77-1411,77-1411
• Parties: Joseph DE FILIPPIS et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 341

567 F.2d 341

Joseph DE FILIPPIS et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 77-1411.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 8, 1977.

Decided Dec. 5, 1977.

Thomas P. Sullivan, U. S. Atty., James T. Hynes, Asst. U. S. Atty., Chicago, Ill., for defendant-appellant.

Russell C. Green, Chicago, Ill., for plaintiffs-appellees.

Before FAIRCHILD, Chief Judge, and SWYGERT and PELL, Circuit Judges.

SWYGERT, Circuit Judge.

The single issue in this appeal is whether the district court abused its discretion in denying defendant's Rule 60(b) motion to vacate the permanent injunction entered against it. For the reasons set forth below, we find the district judge properly exercised his discretion, and therefore affirm the judgment.

This proceeding began on January 9, 1974 when plaintiffs, members of the Marine Air Reserve, filed a complaint against the United States Marine Corps. Plaintiffs alleged that their constitutional rights were violated by defendant's policy prohibiting reservists from wearing short hair wigs to cover long hair while attending annual active training duty (summer camp). ¹ Following an evidentiary hearing, the district court granted plaintiffs' request for a preliminary injunction. De Filippis v. United States, 370 F.Supp. 82 (N.D.Ill.1974). On October 30, 1974, after another hearing, the court permanently enjoined the Marine Corps from enforcing its no-wig regulation against plaintiffs. This injunction was issued after the district court had determined that any legitimate governmental interest in the regulation was outweighed by its infringement of the reservists' personal liberties. No appeal was ever taken from this order. ²

On April 5, 1976, the United States Supreme Court decided Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 408 (1976), which upheld the validity of police department hair grooming standards similar to those of the Marine Corps. As part of its decision, the Court held that the burden was not on the Government to justify the regulation, but rather that the burden was on the plaintiffs to demonstrate the absence of rational connection between the regulation and its purported purpose. Id. at 247, 96 S.Ct. 1440.

Six months after Kelley was decided, the Marine Corps moved pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure to vacate the district court's earlier order, stating that "because of the recent Supreme Court ruling in the case of Kelley v. Johnson, . . . it would be inequitable to continue to enforce the permanent injunction . . . ." The Government specifically argued that Kelley had changed the law concerning the burden of proof, i. e., the burden should have initially been placed on plaintiffs to show no rational basis. The Government, however, neither filed affidavits nor offered testimony showing how continued enforcement of the injunction was inequitable. The district court denied the motion to vacate on January 24, 1977.

I

We begin our analysis by recognizing that a Rule 60(b) motion to vacate is not a substitute for an appeal. Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 95 L.Ed. 207 (1950); Flett v. W. A. Alexander & Co., 302 F.2d 321, 324 (7th Cir.), cert. denied, 371 U.S. 841, 83 S.Ct. 71, 9 L.Ed.2d 77 (1962). Rule 60(b) provides for extraordinary relief. Because of the interest in finality of judgments, Rule 60(b) requires a showing of exceptional circumstances or a grievous wrong evoked by new and unforeseen conditions. Ben Sager Chemicals International, Inc., v. E. Targosz & Co.,560 F.2d 805, 809 (7th Cir. 1977); Securities and Exchange Commission v. Advance Growth Capital Corp., 539 F.2d 649, 652 (7th Cir. 1976). Appellate review of a denial of a Rule 60(b) motion is limited to determining whether the district court abused its discretion. Ben Sager Chemicals, supra at 809; Beshear v. Weinzapfel, 474 F.2d 127, 130-31 (7th Cir. 1973).

Relief under Rule 60(b) is limited to one of the six grounds specified in the rule. ³ Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972). In this case defendant moved to vacate the injunction both under Rule 60(b)(5), allowing relief from the inequitable prospective application of a judgment, ⁴ and Rule 60(b)(6), the residual clause allowing relief for "any other reason justifying relief." A review of these subsections reveals that neither supports the Government's contentions.

II

The Government's claim under Rule 60(b)(6) can be disposed of easily. It must first be noted that (b)(6) is separate from and exclusive of the other five grounds specified in Rule 60(b). Ben Sager Chemicals, 560 F.2d at 810 n. 3; Bershad v. McDonough, 469 F.2d 1333, 1336 n. 3 (7th Cir. 1972). See Klapprott v. United States, 335 U.S. 601, 614-15, 69 S.Ct. 384, 93 L.Ed. 266 (1949). As the Government here invokes subsection (b)(5), it cannot also claim relief under (b)(6). ⁵

III

The question then is whether the Government has met its burden of demonstrating under Rule 60(b)(5) that inequity results from continued enforcement of the injunction. ⁶ This provision does not allow relitigation of issues that have been resolved by the judgment. Rather, it requires a change in the conditions that makes continued enforcement inequitable. 11 Wright & Miller, Federal Practice § 2863 (1973). As Mr. Justice Cardozo stated in United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932):

There is need to keep in mind steadily the limits of inquiry proper to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting. (emphasis added.)

A strong showing must be made before an injunction will be modified or vacated.

No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation . . . . Id. (emphasis added.)

The Government here has not met its burden of proof. Indeed, it has made no showing of how continued enforcement of the injunction works an injustice or constitutes a "grievous wrong." It offered no testimony, filed no affidavits; it only cited Kelley v. Johnson. The Kelley decision, even if applicable, ⁷ was not by itself such a subsequent event as to render inequitable continued application of the injunction.

We will not blindly apply the principle of finality when to do so will cause injustice. On the other hand, there must be an end to litigation someday. Absent a clear showing of grievous wrong, judgments will not, and cannot, be opened.

The order of the district court is affirmed.

PELL, Circuit Judge, dissenting.

This litigation demonstrates, in my opinion, the correctness of Justice Jackson's observation that "judges are not given the task of running the Army." ¹ By not heeding this admonition, and by virtue of a 1974 judicial decision which appears palpably incorrect in the light of Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 408 (1976), which 1974 decision this court is leaving undisturbed despite Kelley v. Johnson, the United States Marine Corps, rather than legitimately exercising its discretion in controlling the appearance of its troops, maintaining discipline, and instilling into the individual, whether he be active or reserve, the esprit de corps that is in the tradition of the Marine Corps, ² now finds itself perpetually locked-in to a judicially created rule prescribing, despite the Corps' judgment to the contrary, aspects of the "running" of the armed forces. Being of the opinion that the district court in the decision presently under review abused its discretion in not granting the Rule 60(b) motion, I respectfully dissent.

I do not quarrel with the numerous cases holding that Rule 60(b) was not intended as, and it is not, a substitute for a direct appeal from an erroneous final judgment. But we are not being asked here to engage in "unscrambling the past," but rather we are asked to deal with the prospective application of an injunction and relief under 60(b) should be available for this. ³ Thus, in Elgin Nat. Watch Co. v. Barrett, 213 F.2d 776 (5th Cir. 1954), the court while reversing the district court insofar as that court had vacated under Rule 60(b) a final, non-appealed judgment, nevertheless affirmed that portion of the judgment which had relieved parties from the prospective effect of the permanent injunction. This differentiation between the past and prospective aspects of a judgment is recognized in Rule 60(b) which provides in pertinent part for relieving a party from final judgment where "it is no longer equitable that the judgment should have prospective application."

The majority opinion quotes from Justice Cardozo's opinion in United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). The famed Justice also, however, in the same opinion, expressed no doubt as to the inherent power of a court of equity to modify an injunction in adaptation to changed conditions even though the decree was a consent one. Writing before the adoption of the Federal Rules of Civil Procedure, and the explicit authorization of Rule 60(b)(5), Justice Cardozo stated that "(a) continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need." Id. at 114, 52 S.Ct. at 462. The Justice then made the distinction which it appears to me is significant in the litigation before us:

The distinction is between restraints...