Tapper v. Hearn

• Decision Date: 10 August 2016
• Docket Number: Docket No. 15-2249-cv,August Term, 2015
• Citation: 833 F.3d 166
• Parties: Marlene Tapper; Yvette Velazquez Bennett; Vivianna Vazquez–Hernandez; Robert Perez; Fran Reiter; Sheila Andersen–Ricci; Martina Franca Associates LLC; Reiter Begun Associates, LLC ; Denis Gittens; Oscar Perez ; The Kings County Committee of The New York State Conservative Party; The New York State Conservative Party; and Martin Dilan, Plaintiffs–Appellants, v. ROSE Gill Hearn, in her official capacity as a New York City Campaign Finance Board Chair; Art Chang, Richard J. Davis, Courtney C. Hall, and Mark S. Piazza, in their official capacities as New York City Campaign Finance Board members; Mark Davies, in his official capacity as New York City Conflicts of Interest Board Executive Director; Richard Briffault, in his official capacity as New York City Conflicts of Interest Board Chair; Fernando Bohorquez, Jr., Anthony Crowell, Andrew Irving, and Erika Thomas–Yuille, in their official capacities as New York City Conflicts of Interest Board members; and Michael McSweeny, in his official capacity as New York City Clerk, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

833 F.3d 166

Marlene Tapper; Yvette Velazquez Bennett; Vivianna Vazquez–Hernandez; Robert Perez; Fran Reiter; Sheila Andersen–Ricci; Martina Franca Associates LLC; Reiter Begun Associates, LLC ; Denis Gittens; Oscar Perez ; The Kings County Committee of The New York State Conservative Party; The New York State Conservative Party; and Martin Dilan, Plaintiffs–Appellants,

v.ROSE Gill Hearn, in her official capacity as a New York City Campaign Finance Board Chair; Art Chang, Richard J. Davis, Courtney C. Hall, and Mark S. Piazza, in their official capacities as New York City Campaign Finance Board members; Mark Davies, in his official capacity as New York City Conflicts of Interest Board Executive Director; Richard Briffault, in his official capacity as New York City Conflicts of Interest Board Chair; Fernando Bohorquez, Jr., Anthony Crowell, Andrew Irving, and Erika Thomas–Yuille, in their official capacities as New York City Conflicts of Interest Board members; and Michael McSweeny, in his official capacity as New York City Clerk, Defendants–Appellees.^*

Docket No. 15-2249-cv

August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: April 25, 2016

Decided: August 10, 2016

James Bopp, Jr. , Randy Elf and Anita Y. Milanovich (on the brief), The Bopp Law Firm, P.C., Terre Haute, IN, for Plaintiffs–Appellants.

Jane L. Gordon , Richard Dearing (of counsel), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants–Appellees.

Before: Walker, Calabresi, And Hall, Circuit Judges.

Hall, Circuit Judge:

Plaintiffs appeal from an order of the United States District Court for the Southern District of New York (Swain, J. ) denying their October 2014 motion under Fed. R. Civ. P. 60(b)(5) and (6) for reconsideration of the district court's February 2009 summary judgment decision, which denied plaintiffs a preliminary and permanent injunction, granted defendants' summary judgment motion, and dismissed plaintiffs' claims challenging the constitutionality of certain contribution restrictions within New York City's campaign finance laws.¹ In their February 27, 2008 amended complaint, plaintiffs—a group of New York City voters, aspiring candidates, lobbyists, and affiliated individuals and entities—claimed, as relevant here, that the laws' restrictions on contributions unduly burdened their protected political speech in violation of the First Amendment and denied them equal protection of the laws in violation of the Fourteenth Amendment. Plaintiffs moved for a preliminary injunction against defendants—members of New York City's Campaign Finance Board and other City representatives (collectively “the City”). In its February 2009 summary judgment decision the district court denied plaintiffs' request for injunctive relief and dismissed their claims challenging the constitutionality of the contribution restrictions. Ognibene v. Parkes (Ognibene I ), 599 F.Supp.2d 434 (S.D.N.Y. 2009). This Court affirmed that decision. Ognibene v. Parkes (Ognibene II ), 671 F.3d 174 (2d Cir. 2011), cert. denied , ––– U.S. ––––, 133 S.Ct. 28, 183 L.Ed.2d 676 (2012). Several years later, the Supreme Court issued its decision in McCutcheon v. FEC , –––U.S. ––––, 134 S.Ct. 1434, 188 L.Ed.2d 468 (2014). Plaintiffs contend that McCutcheon has altered in their favor the jurisprudence governing campaign finance. Using McCutcheon as their sword, plaintiffs now seek to reattack the district court's February 2009 order that denied them injunctive relief and that upheld as constitutional the challenged provisions of the City's laws. For the following reasons we affirm the district court's decision to deny plaintiffs' motion for reconsideration.

BACKGROUND

Subject of this challenge are three provisions of New York City's Administrative Code commonly known as the “pay to play” rules. These provisions (1) lower the generally applicable base campaign contribution limits for people engaged in business dealings with the City, see N.Y.C. Admin. Code §§ 3-703(1-a), 3-719(2)(b) (the “doing business contribution limits”); (2) deny matching funds, which are otherwise generally available, for any contribution made by people engaged in business dealings with the City and certain people associated with lobbyists, see N.Y.C. Admin. Code §§ 3-702(3), 3-703(1-a) (the “non-matching funds provision”); and (3) extend the existing prohibition on corporate contributions to partnerships, LLCs, and LLPs, see N.Y.C. Admin. Code §§ 3-703(1)(l ), 3-719(2)(b) (the “entity contribution ban”).

In the course of deciding Ognibene I, the district court consolidated plaintiffs' motion for a preliminary injunction with the merits of their claim for permanent injunctive relief. Pursuant to the Supreme Court's then-existing framework for analyzing challenges to restrictions on political campaign contributions, the district court upheld all three “pay to play” rules, finding them to be “closely drawn” to achieve a sufficiently important governmental interest, namely, addressing reasonable concerns about actual or apparent corruption with respect to campaign contributions. See Ognibene I , 599 F.Supp.2d at 444–61. On appeal, the three judges of this Court each wrote separately to clarify their views on the law applicable to various issues that do not bear on our holding today. Ultimately, they affirmed the district court's decision. See Ognibene II , 671 F.3d at 177.

In April 2014, the Supreme Court decided McCutcheon v. FEC. In October 2014, plaintiffs moved under Rule 60(b)(5) and (6)² for relief from the February 2009 judgment in light of McCutcheon. Plaintiffs contend in their motion that McCutcheon established, inter alia , a more rigorous standard of review with respect to the government's burden of proof and what constitutes a permissible governmental interest, a standard under which the “pay to play” rules do not pass muster. Plaintiffs argued that because these unconstitutional provisions had continued to chill their protected political speech, they were entitled to relief under Rule 60(b). By order dated June 9, 2015 the district court denied the motion, finding that McCutcheon did not clearly compel a result different from that reached by this Court in Ognibene II and that plaintiffs failed to demonstrate the extraordinary circumstances necessary to justify relief under the applicable Rule 60(b) provisions. Plaintiffs timely filed this appeal.

DISCUSSION

Plaintiffs' arguments on appeal rely entirely on Rule 60(b)(5). This subsection provides, as relevant here, that a court “may relieve a party ... from a final judgment, order, or proceeding” where “applying [the judgment] prospectively is no longer equitable.” Although not addressed by the parties or the district court, we solicited and received supplemental briefing from the parties on the following threshold issue:

Whether the third clause of Federal Rule of Civil Procedure 60(b)(5) —covering circumstances in which “applying [a final judgment] prospectively is no longer equitable”—is properly invoked to “relieve a party ... from a final judgment” where no injunction or other order with direct prospective force has been entered, see Comfort v. Lynn Sch. Comm. , 560 F.3d 22, 27–28 (1st Cir. 2009), and as to which the mandate has issued and certiorari review has been denied or the time for seeking such review has expired.

Supp. Br. Order (April 28, 2016). In their supplemental letter brief plaintiffs answer the question in the affirmative and assert there are two prospective effects of the district court's February 2009 order that entitle them to relief from it: (1) it “establishes an affirmative, judicial sanction for the chill of Plaintiffs' First Amendment rights,” Appellants' Supp. Ltr. Br. at 5, and (2) its res judicata effect prevents plaintiffs from vindicating their rights in a new action. For the following reasons we conclude that neither of these purported effects, considered alone or in combination, satisfies the threshold requirement under the third clause of Rule 60(b)(5) that the judgment sought to be reconsidered apply prospectively.

“Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments.” Nemaizer v. Baker , 793 F.2d 58, 61 (2d Cir. 1986) (citing House v. Sec'y of Health & Human Servs. , 688 F.2d 7, 9 (2d Cir. 1982) ). Although “it should be broadly construed to do substantial justice, ... final judgments should not be lightly reopened.” Id. (quotations omitted).

To that end, the third clause of subsection (5) aims to ensure equitable results, but it covers only final judgments that “apply[ ] ... prospectively.” Fed. R. Civ. P. 60(b)(5). Neither the Rule nor the accompanying Advisory Committee Notes define what constitutes a prospective application. Of course, “[v]irtually every court order causes at least some reverberations into the future, and has, in that literal sense, some prospective effect.” Twelve John Does v. District of Columbia , 841 F.2d 1133, 1138 (D.C. Cir. 1988). “That a court's action has continuing consequences, however, does not necessarily mean that it [‘appl[ies] ... prospectively’] for the purposes of Rule 60(b)(5).” Id. Such a broad interpretation of this provision would render the word “prospectively” superfluous and eviscerate the principle of finality.

The history of Rule 60(b)(5) supports a more reasonable construction. The third clause of subsection (5), added by amendment in 1948, codified a power that courts had long been exercising: to modify their decrees or injunctions in light of changed circumstances. See Twelve John Does , 841 F.2d at 1139 (analyzing the seminal Supreme Court cases United States v. Swift & Co. , 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932) —in which the Court considered modifying a consent decree that imposed restrictions on meat-packing businesses named in a Sherman Anti-Trust Law action in light of significant changes to the nature of the meat-packing industry—and ...