Villescas v. Abraham

• Decision Date: 25 September 2003
• Docket Number: No. CIV. 97-B-1955.,CIV. 97-B-1955.
• Parties: Carlos VILLESCAS, Plaintiff, v. Spencer ABRAHAM, Secretary, U.S. Department of Energy, Defendant.
• Court: U.S. District Court — District of Colorado

285 F.Supp.2d 1248

Carlos VILLESCAS, Plaintiff, v. Spencer ABRAHAM, Secretary, U.S. Department of Energy, Defendant.

No. CIV. 97-B-1955.

United States District Court, D. Colorado.

September 25, 2003.

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John T. Carlson, Federal Public Defenders Office, Darold W. Killmer, Killmer & Lane, LLP, Denver, CO, for Plaintiff.

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.

I. Background

Plaintiff Carlos Villescas sued the Department of Energy in 1997 under the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the ADEA, 29 U.S.C.A. § 621 et seq. Plaintiff argued that Defendant severely retaliated against him for his testimony in a co-worker's ADEA and Title VII trial that tended to support the co-worker's claims. A trial was held in Plaintiff's case in December 2000. His Title VII claim was presented to the jury. He tried his ADEA claim to the Court.

The jury found that Defendant's conduct did not constitute "adverse action" under Title VII and returned a verdict for the Department of Energy. The jury came to its verdict only after Defendant reversed its long-held, pre-trial position that Plaintiff was "an adulterer and nepotist." Throughout the pre-trial portion of the case, Defendant relentlessly asserted this position. Conversely, Defendant's counsel in her opening statement did not maintain these allegations. In fact, it soon became clear that Defendant no longer adhered to his pre-trial position. Before the jury, Defendant even denied making such accusations. Plaintiff vigorously denied Defendant's allegations and continues to deny them.

Plaintiff constructed his case based on the harm and damage caused by Defendant's imputations. Both Plaintiff's counsel and I were "stunned," see Appellee's Supplemental Appendix, 29-35, at Defendant's reversal and denial of its long-held position. I was clear in my disdain for this underhanded trial tactic:

[T]hroughout this case the government has called Mr. Villescas an adulterer, an incestuous person, throughout this case, in the pleadings in this case. Now we get to trial-you know, `We never said he was an adulterer'.... It's outrageous.... You have littered the paper in this case, which is now public record, calling Mr. Villescas an adulterer, a nepotist. I'm sorry, it's just outrageous. And then to all of a sudden pull this. You know, it's almost like Harry Potter's invisible cloak. Pull it over yourselves and say, `Oh no, we didn't do anything like that.' It's just outrageous.... [I]t's so slick. It's so slick it's greasy.

Id. However, Defendant had absolute immunity to assert its position. Plaintiff considers Defendant's maneuver a deception. So do I. Defendant deceived Plaintiff, deceived me, and very likely deceived the jury.

Plaintiff now contends that, as a result of Defendant's mendacity, the jury verdict on the Title VII claim favored Defendant. As to the ADEA claim I recognized Defendant's ruse, and upon detailed findings of fact, I concluded as a matter of law that the evidence established retaliatory adverse action against Plaintiff. I entered judgment in favor of Plaintiff on his ADEA claim and awarded him $50,000 compensatory damages and $152,530.85 in attorney fees and costs.

Defendant appealed the ADEA judgment. The Tenth Circuit Court of Appeals reversed my damages and attorney-fee award in November 2002 on the ADEA claim. It based its decision on sovereign immunity. See 311 F.3d 1253, 1254 (10th Cir.2002). The court explained: "[t]he narrow dispositive question is whether 29 U.S.C. § 633a(c) waives the sovereign immunity of the United States from an ADEA action seeking solely compensatory damages for emotional distress arising from retaliation for engaging in protected conduct. We hold that it does not. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we reverse the judgment of the district court awarding damages, fees and costs against the appellant." Id. The sovereign immunity defense was raised by the Defendant for the first time on appeal.

My findings of fact and conclusion of law that Defendant retaliated against Plaintiff were not appealed and were not the basis of the ADEA damages and attorney-fee reversal. My findings and conclusion remain the law of this case. Now, Plaintiff moves for equitable relief and attorney fees to replace the damages and attorney fees I originally awarded him pursuant to his ADEA claim. Plaintiff separately moves under the remedial provisions of Fed.R.Civ.P. 60(b) for me to "correct the injustice of the status quo" and award the $50,000 compensatory damages relief on his original Title VII claim in line with my ADEA findings and conclusion that the government retaliated against him. Plaintiff did not move for Rule 59 relief, appeal the Title VII verdict, or seek certiorari in the United States Supreme Court. As discussed below, I deny the Rule 60(b) motion and grant the motion for equitable relief and attorney fees.

II. Discussion

A. Rule 60(b) Relief re: the Title VII Claim

I address the Rule 60 motion first. Plaintiff submits the Tenth Circuit's ruling in this case has made the prospective effect of the jury's Title VII verdict inequitable. Fed.R.Civ.P. 60(b) states:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.... The motion shall be made within a reasonable time ....

As a threshold matter, and contrary to what Defendant asserts, Plaintiff's Rule 60(b) motion is not "frivolous." Also, both of Plaintiff's motions were filed within a reasonable time. I have considerable discretion to invoke my equitable powers under Rule 60(b) when events that take place after the entry of judgment render enforcement of the judgment inequitable, see, e.g., Zimmerman v. Quinn, 744 F.2d 81, 82-83 (10th Cir.1984). Nonetheless, after considerable research, I conclude that neither Rule 60(b)(5) nor (b)(6) serve to provide the Title VII relief Plaintiff now seeks.

Generally, Rule 60(b) relief "is extraordinary and may only be granted in exceptional circumstances." FDIC ex rel. Heritage Bank & Trust v. United Pac. Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998), citing Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir.1990). Plaintiff contends Defendant duped the jury by hiding its previous allegations of nepotism and adultery. This may be true. However, Defendant was not legally precluded from arguing this new position to the jury. Plaintiff did not seek amendment or alteration of the verdict under Fed.R.Civ.P. 59. Plaintiff did not appeal the jury's verdict.

Plaintiff contends that he was not moved to question the jury verdict until after the Tenth Circuit ruled on the ADEA appeal. Plaintiff's post-trial strategy was probably guided by my ADEA ruling and judgment. But I have no reason to believe Plaintiff did not make an informed and intelligent decision not to appeal the Title VII jury verdict shortly after it issued. Therefore, I conclude the circumstances of this case, while disturbing, are not "exceptional" under Rule 60(b).

Even if this case were "exceptional" under Rule 60(b), neither Rule 60(b)(5) nor (b)(6) provides an adequate basis for relief. Rule 60(b)(5) prevents enforcement of judgments with prospective application when facts or law have changed post-order. See DeWeerth v. Baldinger, 38 F.3d 1266 (2nd Cir.1994) (injunction modification); Reynolds v. McInnes, 338 F.3d 1221 (11th Cir.2003) (consent-decree modification). Prospective application within the meaning of Rule 60(b)(5) means that the judgment a party seeks to render ineffective: 1) compels a party to perform; 2) orders a party not to perform a future act; or 3) mandates court supervision of continuing interaction between the parties. See 47 AM. JUR. Judgments § 846; Twelve John Does v. District of Columbia, 841 F.2d 1133 (D.C.Cir.1988).

Injunctions and consent decrees are the usual prospective judgments that qualify for Rule 60(b)(5) relief: "it is appropriate to grant a Rule 60(b)(5) motion when the party seeking relief from an injunction or consent decree can show a significant change either in factual conditions or in law." Agostini v. Felton, 521 U.S. 203, 215, 117 S.Ct. 1997, 138 L.Ed.2d 391 (U.S.1997). A denial of relief and dismissal of a claim rarely qualifies as a "prospective judgment" under Rule 60(b)(5). See Twelve John Does at 1139-41. Here, while the jury verdict denied Plaintiff relief under Title VII, it had no prospective effect for the purposes of Rule 60(b)(5).

"The test for modifying a judgment at the request of a party claiming injury pursuant to ... Rule 60(b)(5) is nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions." 47 AM. JUR. Judgments § 847, citing, e.g., Swift Chemical Co. v. Usamex Fertilizers, Inc., 646 F.2d 1121 (5th Cir. 1981). "Thus, modification is to be granted cautiously, and only where there is a showing of changed circumstances resulting in extreme and unexpected hardship and oppression." 47 AM. JUR. Judgments § 847, citing, e.g., Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803 (8th Cir.1969). "The court's duty when confronted with such a motion is not to examine the correctness of the existing decree at the time it was entered or even whether it is needed today, but to determine whether, assuming it was needed when entered, intervening changes have eliminated that need." 47 AM. JUR. Judgments § 847, citing, e.g., United States v. Swift & Co., 189 F.Supp. 885 (N.D.Ill.1...