Kramer v. Gates

• Decision Date: 06 March 2007
• Docket Number: No. 05-5385.,05-5385.
• Citation: 481 F.3d 788
• Parties: Mark Lee KRAMER, et al., Appellees v. Robert M. GATES, Secretary, Department of Defense, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

481 F.3d 788

Mark Lee KRAMER, et al., Appellees v. Robert M. GATES, Secretary, Department of Defense, Appellant.

No. 05-5385.

United States Court of Appeals, District of Columbia Circuit.

Argued December 7, 2006.

Decided March 6, 2007.

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.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

STEPHEN F. 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 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 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, 71 S.Ct. 209, 95 L.Ed. 207 (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 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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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, 118 S.Ct. 1003, 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, 118 S.Ct. 1003 (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, 118 S.Ct. 1003, 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, 119 S.Ct. 1563, 143 L.Ed.2d 760 (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, 85 S.Ct. 1136, 14 L.Ed.2d 8 (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, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).

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, 118 S.Ct. 1003. 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....