Nowicki v. U.S.

• Decision Date: 05 August 1976
• Docket Number: No. 75-1685,75-1685
• Citation: 536 F.2d 1171
• Parties: Keith NOWICKI, d/b/a K & F Food Market, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1171

536 F.2d 1171

Keith NOWICKI, d/b/a K & F Food Market, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 75-1685.

United States Court of Appeals, Seventh Circuit.

Argued April 7, 1976.

Decided June 22, 1976.

Rehearing Denied Aug. 5, 1976.

Robert E. Kopp, Michael Kimmel, Attys., Dept. of Justice, Civ. Div., App. Section, Washington, D. C., for defendant-appellant.

Robert J. DuComb, Jr., South Bend, Ind., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, BAUER, Circuit Judge, and WYZANSKI, Senior District Judge. ^*

HASTINGS, Senior Circuit Judge.

Keith Nowicki, a resident of Indiana, doing business under the firm name and style of K & F Food Market, at 239 South Chapin Street, South Bend, St. Joseph County, Indiana, was engaged in the operation of a small retail food store. On March 12, 1969, Nowicki joined the Food Stamp Program and thereafter a significant portion of his business was directly or indirectly related to this program.

On May 27, 1971, Nowicki brought this action in the United States District Court for the Northern District of Indiana, South Bend Division, ¹ for a judicial review pursuant to the provisions of the Food Stamp Act of 1964, 7 U.S.C. § 2022 (the Act). Plaintiff Nowicki sought judicial review of administrative action taken by the Department of Agriculture through its Food and Nutrition Service on April 27, 1971, disqualifying him from participation in the Food Stamp Program for one year as a consequence of a finding that plaintiff had violated certain provisions of the Act and food stamp regulations.

Pursuant to § 2022 of the Act, the district court held a "trial de novo" to "determine the validity" of the administrative action here involved. In a detailed unreported memorandum of decision, the district court meticulously reviewed the entire administrative action and found "that the agency has fully complied with all of the procedural requirements in making its determination." In its memorandum of decision, the court further stated that "plaintiff committed a violation of the regulations, and the agency determination of the violation and resulting disqualification were arrived at in full compliance with the applicable statutes and regulations, and the period of disqualification imposed was within the limits of the regulations," and the court concluded that "the agency's determination of disqualification was valid."

The district court further found and held that under § 2022 of the Act, it was only empowered to determine the validity of the agency's action, citing Save More of Gary, Inc. v. United States, 7 Cir., 442 F.2d 36, cert. dismissed, 404 U.S. 987, 92 S.Ct. 535, 30 L.Ed.2d 549 (1971), affirming Judge Beamer's decision in Save More, N.D.Ind., 309 F.Supp. 39 (1970). Judge Beamer in Save More, 309 F.Supp. at 39, cited and relied upon Judge Robson's decision in Marbro Foods, Inc. v. United States, N.D.Ill., 293 F.Supp. 754 (1968).

In the case at bar, the district court stated in a footnote to its memorandum and order: "This court does not intend, by this Order, to express approval of the long period of disqualification which was imposed in this case. However, the penalty was within the prescribed limits and this question is not before the court. Martin v. United States, 459 F.2d 300 (6th Cir. 1972) (cert. denied, 409 U.S. 878, 93 S.Ct. 129, 34 L.Ed.2d 131)." ²

On November 22, 1974, the district court entered judgment for defendant United States and dismissed a prior injunction. Plaintiff did not file a written notice of appeal from this final judgment.

On February 24, 1975, 94 days after the entry of judgment, the district court sua sponte entered an order reopening the November 22 judgment in view of a February 7, 1975, en banc opinion in Cross v. United States, 4 Cir., 512 F.2d 1212 (1975), holding, according to the district court, "that the demands of procedural due process require that a United States District Court does indeed have the power and authority to review not only the fact of a violation of the Food Stamp Act, but also to review the validity of the penalty imposed, which latter question was not considered by this Court in its Memorandum and Order herein of 22 November, 1974." It was thereupon ordered by the district court that a hearing of any needed additional evidence and oral argument be held on the question of the validity of the sanction imposed in the instant case.

After further proceedings and the receipt of additional evidence, citing Cross as authority, the district court modified its November 22, 1974, judgment for the United States, ruling "that the period of disqualification imposed, although within the limits of the regulations, was too harsh a sanction as to the plaintiff herein, and that said agency's determination of disqualification is invalid." (Emphasis added.) The district court then ordered that plaintiff's disqualification be reduced from one year to 120 days and entered judgment thereon.

The United States appealed. We reverse.

I.

Under the posture of this case, the relevant portions of § 2022 of the Act, governing judicial review by the district court, read:

If the store or concern feels aggrieved by such final determination (by the administrative agency) he may obtain judicial review thereof by filing a complaint against the United States in the United States district court * * * . The suit in the United States district court * * * shall be a trial de novo by the court in which the court shall determine the validity of the questioned administrative action in issue. If the court determines that such administrative action is invalid it shall enter such judgment or order as it determines is in accordance with the law and the evidence. (Emphasis added.)

The issues raised by the Government on this appeal are:

(1) whether the "trial de novo" provision of the Food Stamp Act authorized a district court to modify a disqualification period that was "validly" imposed by the agency;

(2) whether the administrative action establishing the disqualification period in this case was valid; and

(3) whether the district court had power to change its own final judgment in this case after the appeal time had run.

We first take note of what the district court did and did not do in its actions below.

In its judgment order of November 22, 1974, the court ordered that plaintiff Nowicki take nothing by his complaint and rendered judgment in favor of defendant United States, finding that the agency's determination of disqualification was valid. The court did not reach or rule upon the validity of the sanction imposed.

In its order of February 24, 1975, the court stated that it would hear any needed additional evidence and oral argument on the question of the validity of the sanction imposed by the agency against the plaintiff.

In its judgment order of March 26, 1975, the court modified its Memorandum and Order entered on November 22, 1974, "in that the Court does now hereby reaffirm and readopt the original Memorandum and Order," with the exception that the administrative sanction was modified so that the period of disqualification was imposed for a period of 120 days rather than one year. Judgment was again entered "that the Plaintiff take nothing by his Complaint herein," and "that the period of disqualification imposed shall be for a period" of 120 days with stated implementing provisions.

In short, except for the modification of the sanction imposed, plaintiff took nothing by his complaint, and the Government's determination of plaintiff's disqualification was found to be valid.

II.

The Government has raised the preliminary question of the district court's power to change its final judgment in this case after the appeal time had run, in view of the time limitations imposed by Rule 59(e), and thereafter, in "extraordinary situations," by Rule 60(b), and particularly Rule 60(b)(6), of the Federal Rules of Civil Procedure, 28 U.S.C. We have examined the authorities which restrict the court in relieving a party from a final judgment pursuant to Rule 60(b)(1), (2) and (3), to a "reasonable time" not more than one year after the judgment was entered, and which, refusing to expand that period for relief under Rule 60(b)(6), limit it to the time allowed for appeal from the judgment. See Swam v. United States, 7 Cir., 327 F.2d 431, cert. denied, 379 U.S. 852, 85 S.Ct. 98, 13 L.Ed.2d 55 (1964); 7 J. Moore, Federal Practice P 60.22(3-4) (2 ed. 1975). However, in a number of cases this rule has been relaxed to authorize granting a motion for relief. See System Federation No. 91, Railway Employees Department, AFL-CIO v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961) (12 years after imposition of the original injunction); Polites v. United States, 364 U.S. 426, 81 S.Ct. 202, 5 L.Ed.2d 173 (1960) (4 years after the original judgment); Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949) (more than 4 years after the judgment).

There is respectable authority holding that the "reasonable time" limitation under Rule 60(b)(6) rests within the sound discretion of the trial court and, absent abuse, it brings to bear a more liberal attitude where no intervening rights have been affected by the passage of time between judgment and motion. Bridoux v. Eastern Airlines, Inc., 93 U.S.App.D.C. 369, 214 F.2d 207, 209-10, cert. denied, 348 U.S. 821, 75 S.Ct. 33, 99 L.Ed. 647 (1954). Applying this principle to the case at bar, Nowicki's rights had remained the same and the Government had not been adversely affected by the passage of time since no action had been taken in reliance on the district court order in issue. All things being considered here, we cannot say that the district court's action was not made in a reasonable and timely manner, pursuant to Rule 60(b).

III.

In Marbro Foods, 293 F.Supp. at 755, Judge Robson spelled out the administrative action which determined that Marbro...