McDowell v. Celebrezze

• Decision Date: 21 November 1962
• Docket Number: No. 19699.,19699.
• Citation: 310 F.2d 43
• Parties: Judie W. McDOWELL, Appellant, v. Anthony J. CELEBREZZE, Secretary of the United States Department of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

310 F.2d 43 (1962)

Judie W. McDOWELL, Appellant, v. Anthony J. CELEBREZZE, Secretary of the United States Department of Health, Education and Welfare, Appellee.

No. 19699.

United States Court of Appeals Fifth Circuit.

November 21, 1962.

Joseph B. Bergen, Savannah, Ga., for appellant.

Alan S. Rosenthal, Murray H. Bring, Edward A. Groobert, Richard S. Salzman, Morton Hollander, Attys., Dept. of Justice, Washington, D. C., Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Donald H. Fraser, U. S. Atty., for appellee.

Before TUTTLE, Chief Judge, BROWN, Circuit Judge, and JOHNSON, District Judge.

PER CURIAM.

The appellant claimed she was entitled to a "period of disability" and certain benefits which would flow therefrom. The claim has been consistently denied after administrative hearing. On August 19, 1959, appellant commenced an action in the court below to review these adverse administrative determinations. On March 24, 1960, with consent of both parties, the District Judge remanded the case to the Appeals Council for further hearing. The Appeals Council on December 29, 1960, again held that appellant had failed to establish her claims. She again sought judicial review in the District Court. On February 9, 1962, the District Judge granted appellant's motion for summary judgment and reversed the decision of the Appeals Council. Thereafter on March 9, 1962, on the Judge's own motion, he notified all counsel in writing that "After mature judgment and re-reading the record" he was apprehensive that he had "made a mistake" in his judgment and for such reason he desired "to have a re-hearing on the case * * * on March 30, 1962 * * *." The hearing was held in chambers with the appellee present, but the appellant did not attend. Thereupon, on his own motion, the District Judge vacated his judgment of February 9 and entered a judgment affirming the decision of the Secretary of Health, Education and Welfare.

On this appeal the appellant carefully restricts it to the question whether the action of the District Judge in vacating on his own motion the earlier judgment was valid and proper.

This turns primarily on F.R.Civ.P. 60(b) (1). "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, suprise, or excusable neglect; * * *. The motion shall be made within a reasonable time, and for reasons (1) * * * not more than one year after the judgment, order, or proceeding was entered or taken. * * * Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action."

The Judge's Notice of Rehearing fixed for March 30, 1962, fulfilled the requirement of a written motion. "The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion." F.R.Civ.P. 7(b) (1). The Court could initiate this on its own motion. Cf. Link v. Wabash Railroad Co., 1962, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734, applying F.R. Civ.P. 41(b); United Press...