Frederick AIKENS, Plaintiff-Appellant, v. William E. INGRAM, Jr., individually and in his capacity as Adjutant General of the North Carolina Army National Guard; Peter von Jess, individually and in his capacity as Lieutenant Colonel of the North Carolina National Guard; Brian McCarthy, individually and in his capacity as a member of the North Carolina Army National Guard; Paul Jones, individually and in his capacity as a member of the North Carolina Army National Guard, Defendants-Appellees.
No. 08-2278
United States Court of Appeals, Fourth Circuit
Decided: July 13, 2011.
Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, and DIAZ, Circuit Judges.1
OPINION
NIEMEYER, Circuit Judge:
Frederick Aikens, formerly a colonel in the North Carolina Army National Guard, commenced this action against his former colleagues, Adjutant General William Ingram and Lieutenant Colonel Peter von Jess, alleging that they violated his Fourth Amendment rights by wrongfully intercepting, reading, and forwarding his e-mails while he was deployed in Kuwait. The district court dismissed the action without prejudice, concluding that it lacked subject matter jurisdiction because of Colonel Aikens’ failure to exhaust any available intra-military remedies. The court entered a judgment of dismissal on September 14, 2007.
Although Colonel Aikens held the firm belief that the district court had erred, he did not appeal, nor did he seek a stay to assure the district court‘s continuing jurisdiction over the matter. Aikens did file his claim with the Army Board for Correction of Military Records (“ABCMR“), but then, when the Board determined that it could not provide him with the relief that he sought, he did not file another action in the district court. Rather, he sought to reopen the September 14, 2007 judgment by filing a motion for relief from judgment under
For the reasons that follow, we conclude that the district court did not abuse its discretion and thus affirm.
I
After Frederick Aikens was promoted to colonel in the North Carolina Army National Guard, Lieutenant Colonel Peter von Jess was selected to replace him as executive officer of the 139th Rear Operations Center. Shortly thereafter, Colonel Aikens began receiving complaints about von Jess from subordinate field officers, leading Aikens to discipline von Jess in a July 2002 officer evaluation report. Aikens reiterated that evaluation in a December 2002 evaluation report. Adjutant General William Ingram, who had selected von Jess to replace Aikens as executive officer, invalidated Colonel Aikens’ evaluation of von Jess, which provoked Colonel Aikens to file a complaint for undue command influence with the Department of the Army Inspector General. The Inspector General substantiated Aikens’ complaint.
According to Aikens, when he was later deployed to Kuwait in April 2003, two of his subordinate officers, under instructions from General Ingram, illegally monitored and intercepted his personal e-mails from a computer system they had set up for him. These e-mails contained personal correspondence, including negative statements about General Ingram and others.
Thereafter, General Ingram ordered two separate investigations of Aikens, one in December 2003 and another in February 2004, both of which were later determined to be unsubstantiated. But Colonel Ai-
Colonel Aikens commenced this action against General Ingram and Lieutenant Colonel von Jess, contending that the defendants violated his Fourth Amendment rights and Army Regulation 380-19. General Ingram and Lieutenant Colonel von Jess filed a motion to dismiss pursuant to
The district court granted the motion without prejudice, directing Aikens to exhaust his intra-service administrative remedies with the ABCMR. Aikens v. Ingram, 513 F. Supp. 2d 586 (E.D.N.C. 2007). The court noted that Colonel Aikens’ complaint, in making his Fourth Amendment argument, relied on Army Regulation 380-19 and that the ABCMR “has authority to ‘correct an error or remove an injustice’ in plaintiff‘s military record,” id. at 591 (quoting
At bottom, plaintiff seeks to rescind the resignation letter contained in his military record. In so doing, he relies on the Fourth Amendment and on Army Regulation 380-19. However, plaintiff‘s “failure to exhaust intraservice administrative remedies [makes] his federal claim a nonjusticiable military controversy.”
Id. (quoting Williams, 762 F.2d at 360) (alterations in original). Explaining that its dismissal without prejudice “grant[ed] deference to the military to handle its own affairs,” the court stated that if the ABCMR had jurisdiction, the court would later conduct judicial review of the administrative proceeding. But if the ABCMR did not have jurisdiction, the agency would “take no action and [Aikens] [could] return to federal court.” Id. at 591-92.
Colonel Aikens contends that the district court was “indisputably wrong about exhaustion,” but he elected not to appeal.2 Neither did Colonel Aikens ask the district court for a stay of its dismissal order, a request he agreed at oral argument was not barred. Rather, he “dutifully,” as he asserts, pursued administrative remedies before the ABCMR. The ABCMR denied Aikens relief, writing in a letter to Colonel Aikens, “Upon review it has been determined that your application and the remedy you seek is not within the purview of the ABCMR; therefore, it is returned without prejudice and without action being taken by this Board.”
From the district court‘s order denying Aikens’ motion for relief from judgment under
II
Rule 60(b) authorizes a district court, on motion and upon such terms as are just, to relieve a party from a final judgment, order, or proceeding for any “reason justifying relief from the operation of the judgment.” However, we have re-
peatedly instructed that only truly “extraordinary circumstances” will permit a party successfully to invoke the “any other reason” clause of § 60(b). This very strict interpretation of Rule 60(b) is essential if the finality of judgments is to be preserved.
486 U.S. at 873 (Rehnquist, C.J., dissenting) (citations omitted). To give
We have thus required in addition to the explicitly stated requirements that the motion under
We review the district court‘s ruling on a 60(b) motion for abuse of discretion, see Browder v. Dir., Dep‘t of Corr., 434 U.S. 257, 263 n.7 (1978); Nat‘l Credit Union, 1 F.3d at 265, and “an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review,” Browder, 434 U.S. at 263 n.7.
With these principles in hand, we now turn to Colonel Aikens’ contention that the district court abused its discretion in denying him relief from its prior judgment of dismissal under
III
Aikens asserts that he demonstrated extraordinary circumstances to reopen the September 14, 2007 judgment because (1) “[a]fter dismissal, he dutifully sought exhaustion from the ABMCR” and (2) he would “face a limitations defense” upon filing a new claim. He maintains that his predicament was “caused by the district court‘s erroneous exhaustion requirement” and that he is therefore entitled to relief from the erroneous judgment.4 Alternatively, he argues that the district court should have treated his
Appellees will argue that the limitations period began to run on November 24, 2003, when Col. Aikens became aware of the claim. A three year limitations period applies to Col. Aikens‘s claim. Col. Aikens timely filed his case in the district court on April 27, 2006, tolling the limitations period with 212 days left. But Appellees will argue that the limitations period began to run again on September 13, 2007, when the district court dismissed the claims for failure to exhaust and that the limitations period never was tolled again.
(Internal citations omitted).
In the circumstances, we conclude that the district court did not abuse its discretion in finding that Aikens did not demonstrate the “extraordinary circumstances” necessary to employ
First, if Aikens was convinced that the district court erred in dismissing his action for failure to exhaust administrative remedies, as he apparently was, he should have appealed, but he did not. As he reiterates in his brief, “the district court was indisputably wrong about exhaustion, and Col. Aikens consistently argued to the district court that exhaustion was not required.” The obvious procedure to follow was to appeal the judgment by filing a notice of appeal within 30 days of the September 14, 2007 judgment. This court has repeatedly recognized that a
Second, Aikens could have asked the district court to stay the action pending exhaustion of administrative remedies, but again he did not, failing to recognize that such a stay would be an appropriate exercise of the district court‘s discretion. We have readily ordered a stay of an ongoing federal action pending exhaustion of administrative or state proceedings, particularly to avoid statute of limitations problems. See, e.g., Traverso v. Penn, 874 F.2d 209, 212-13 (4th Cir. 1989) (requiring a stay rather than dismissal of § 1983 action to allow for exhaustion of pending state proceedings); Suggs v. Brannon, 804 F.2d 274, 279-80 (4th Cir. 1986) (abstaining from § 1983 claim due to ongoing state prosecution, but ordering a stay rather
Third, after exhausting administrative remedies, Aikens could have filed a new action, rather than seeking relief from a months-old judgment or claiming that the district court should have treated his
In short, Aikens’ posited predicament was as much the result of his management of the action and his litigation strategy choices as it was the result of the district court‘s erroneous judgment of dismissal. Moreover, he did not demonstrate that his posited limitations predicament was anything more than speculation. It is not clear when Aikens’ cause of action accrued, and Aikens’ counsel agreed that he did not know what tolling provisions might apply or how they might apply.
The district court concluded that Aikens cannot “avoid the statute of limitations problem he now faces by deft use of
Petitioner made a considered choice not to appeal, apparently because he did not feel that an appeal would prove to be worth what he thought was a required sacrifice of his home. His choice was a risk, but calculated and deliberate and such as follows a free choice. Petitioner cannot be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong.... There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.
IV
In the alternative, Aikens argues that the district court should have treated his
The holding in Miller provides meager support for his position. In Miller, a pro se inmate filed a “Motion to Reinstate Cause,” complaining about prison conditions. The Eighth Circuit, giving the inmate, who was not a lawyer, the benefit of a liberal construction, treated the inmate‘s motion to reinstate “cause” as a complaint
Aikens’ circumstances are not similar. While the inmate in Miller apparently sought to file a “cause,” Aikens’
V
In the circumstances of this case, we cannot conclude that the district court abused its discretion in denying Aikens’ March 31, 2008 motion to reopen the September 14, 2007 judgment under
AFFIRMED
DIAZ, Circuit Judge, concurring:
I am pleased to join in full Judge Niemeyer‘s well-reasoned majority opinion. I write separately to address a few of the contentions raised by my dissenting colleagues.
At a global level, I am concerned by the dissenters’ application of the abuse-of-discretion standard, which all agree is the prism through which we must measure the district court‘s action in this case. The principal dissent authored by Judge King posits that the en banc majority would readily consent that the district court “certainly had the discretion” to grant Aikens‘s
Yet inherent in the deferential abuse-of-discretion standard is an overarching command of “judicial restraint, which... safeguard[s] the superior vantage points of those entrusted with primary decisional responsibility.” Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 320-21 (4th Cir. 2008). When reviewing a lower court decision for abuse of discretion, words like “could” and “should” are not part of our judicial lexicon. Indeed, the standard “requires a reviewing court to show enough deference to a primary decisionmaker‘s judgment that the court does not reverse merely because it would have come to a different result in the first instance.” Id. at 322. Ever cognizant that our evaluation in such a case is “only a posterior check on judgment which strays too far from the mark,” we must further realize that the abuse-of-discretion standard “draws a line... between the unsupportable and the merely mistaken.” Id. Reversal is appropriate only in the former case.
Were I the district judge in this case, I might well have reached a conclusion different from that below and granted Aikens‘s
The principal dissent next contends that Supreme Court precedent compelled the district court to identify a possible statute-of-limitations issue and sua sponte enter a stay after concluding that Aikens must exhaust his administrative remedies. In so doing, it reads Supreme Court precedent a bit too broadly. The Supreme Court has indeed confirmed that “a federal court [is permitted] to stay proceedings in a case properly before it while awaiting the decision of another tribunal.” United States v. Mich. Nat‘l Corp., 419 U.S. 1, 4 (1974) (emphasis added). And the Court has at least once ordered entry of a stay when a party has argued that the applicable statute of limitations may bar refiling of a claim after agency action. Carnation Co. v. Pac. Westbound Conference, 383 U.S. 213, 222 (1966).
I doubt the applicability of Carnation to this case, as it dealt with a tightly cabined antitrust claim in the context of the doctrine of primary jurisdiction. See Guam v. Am. President Lines, 28 F.3d 142, 149 n. 11 (D.C. Cir. 1994) (expressing skepticism about propriety of reading Carnation to endorse general proposition that, “where rights would be lost as a result of a statute of limitations bar, the district court must retain jurisdiction [after referring case to agency] in order to toll the limitations period“). And, in any event, Carnation and the Supreme Court cases relied on by the principal dissent include crucial elements missing from Aikens‘s challenge. All were direct appeals from an exhaustion ruling, and in each the parties brought the statute-of-limitations issue to the attention of the court. Neither the Supreme Court nor this court has ever even intimated that a district court must search the record for possible statute-of-limitations problems and sua sponte enter a stay after determining that a plaintiff has not exhausted his administrative remedies.
Turning to the possible statute-of-limitations bar confronting Aikens, the principal dissent posits that the district court in its denial of Aikens‘s
KING, Circuit Judge, dissenting:
A majority of our en banc Court imposes the severest of sanctions against Colonel Aikens for his lawyer‘s failed, but sincere attempt to have the district court address the merits of Aikens‘s claim that his former military associates engaged in deplorable conduct that worked a serious deprivation of his civil rights. Having concluded, wrongly, that it lacked authority to decide the dispute, the district court dispatched Aikens to embark on a futile quest to vindicate its jurisdictional theory. Though the court believed itself rid of the matter, it was required by long-standing Supreme Court precedent to nonetheless retain the case and enter a stay sua sponte. The district court instead erroneously dismissed it, assuring Aikens that he “may return to federal court” if he truly belonged there. Aikens v. Ingram, 513 F. Supp. 2d 586, 592 (E.D.N.C. 2007).
Aikens took the court up on its offer, accepting its invitation to return after verifying that proceeding before the Army Board for Correction of Military Records (the “ABCMR“) was unnecessary. That process took less than seven months, an accomplishment that, given the oft-glacial pace of civil litigation, can hardly be criticized. But because counsel sought to attract the district court‘s attention through a timely Rule 60(b) motion rather than risking his client‘s cause by filing a potentially untimely new complaint, the court yanked the welcome mat from beneath Aikens‘s feet. Now, on appeal, the en banc majority has failed to appreciate that this entire predicament was not the result of counsel‘s disputably poor choices, but was instead caused by the district court‘s demonstrably wrong ones. Unwilling to lend my sanction to the injustice below, I must dissent.
Generally speaking, if a service-member plaintiff fails to exhaust “available intra-service remedies,” his federal claim against the military is “a nonjusticiable military controversy.” Williams v. Wilson, 762 F.2d 357, 360 (4th Cir. 1985). We have recognized an exception, however: “If the outcome would predictably be futile, the doctrine of exhaustion will not apply.” Guerra v. Scruggs, 942 F.2d 270, 276 (4th Cir. 1991) (internal quotation marks omitted). In conformance with our precedent, Colonel Aikens contended in the district court that there were no “available intra-service remedies” and the outcome of an ABCMR application “would predictably be futile” because the ABCMR lacked jurisdiction to accord him any relief. See
Once the district court dismissed his case, Colonel Aikens was faced with two options. First, he could proceed directly to the ABCMR—plainly a far more suitable and definitive arbiter of its own jurisdiction than any federal court. See Randall v. United States, 95 F.3d 339, 348 (4th Cir. 1996) (recognizing that, to the extent federal courts may review ABCMR decisions, “such decisions can be set aside only ‘if they are arbitrary, capricious, or not based on substantial evidence‘” (quoting Chappell v. Wallace, 462 U.S. 296, 303 (1983))).1 Alternatively, Aikens could appeal to this Court and, if we affirmed the district court, end up before the ABCMR anyway. Aikens selected the obvious and more efficient option: filing the ABCMR application. Four months later, just as Aikens had predicted, the ABCMR determined that it was powerless to act on the application because the relief sought therein was “not within [its] purview.” J.A. 43.2
This development brought Colonel Aikens to another crossroads. On the one
In assessing the
Notwithstanding its supposition that Colonel Aikens had been time-barred from re-asserting his
B.
In pursuing relief, Colonel Aikens specifically invoked clause (6) of
When the court overlooks the dispositive issue in a case and proceeds to decide a case summarily before discovery is concluded and before an order of discovery has been complied with, there has been a mistake and inadvertence and one that works an injustice.
Rule 60(b) —especially as amended in 1948 by the addition of (b)(6)—clearly covers the plaintiff‘s motion to vacate the summary judgment entered here.
Id. at 1041. In Compton, an action for unpaid wages in which a default judgment was entered against the defendant, the district court had erroneously awarded the plaintiff statutory penalty wages, resulting in an award “almost two hundred times” the amount plaintiff was actually owed. See Compton, 608 F.2d at 99, 101. We concluded that—because of “the unusual and extraordinary circumstances of this case and in view of the unconscionably unjust judgment entered“—this was “just such an extraordinary case where [Rule 60(b)(6)‘s] ‘catch-all’ ground was intended to afford relief.” Id. at 106, 107 (emphasis omitted).
On appeal, Colonel Aikens also relies on similarly decided
Finally, in Whitmore, after dismissing the petitioner‘s federal habeas claim for failure to exhaust state remedies, the district court itself recognized that it had made a mistake worthy of
Appellees unlawfully—and possibly criminally—invaded Col. Aikens’ privacy by monitoring and intercepting his e-mails, while he was serving his country in a combat zone, in violation of the Fourth Amendment and [42] U.S.C. § 1983. Col. Aikens has yet to be heard on the merits of his claims and, without relief, may never be. Col. Aikens’ first timely attempt to have his case heard was dismissed for failure to exhaust intraservice remedies, despite the fact that no intraservice remedies were available. His second attempt, this time before the ABCMR, as directed by the district court, was rejected because, as Col. Aikens predicted, the ABCMR lacks authority to provide the relief Col. Aikens seeks. Col. Aikens’ third attempt, to revive his first lawsuit through
Rule 60(b)(6) after exhausting intraservice remedies with the ABCMR as required by the district court, was denied. Col. Aikens now faces a statute of limitations defense to any future attempt to file a new lawsuit. These circumstances are exceptional.
Reply Br. of Appellant 1-2 (footnote omitted). Indeed, in these circumstances, the court has committed “a mistake... that works an injustice,” see White, 888 F.2d at 1041, and “fundamental fairness and considerations of justice... command that the judgment... be vacated,” see Compton, 608 F.2d at 107. Notably, in addition to accomplishing justice for Aikens,
To be sure, not all mistakes made by a court are sufficient to warrant
II.
The foregoing amply illustrates that had the district court been inclined to grant Aikens‘s
Put simply, the abuse-of-discretion standard of review does not confer upon a district court carte blanche to close its doors to a litigant who is merely following the court‘s own advice. Indeed, we have previously emphasized that “even under an abuse of discretion standard, we still must midpage-ps n=513 engage in ‘meaningful appellate review.‘” United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008). Our precedent counsels that “a reviewing court is obliged to reverse if the court has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Gannett Co., Inc. v. Clark Const. Group, Inc., 286 F.3d 737, 741 (4th Cir. 2002) (internal citation omitted). This is so “[e]ven if a district court applies the correct legal principles to adequately supported facts.” Id.
In this case, the district court erroneously dismissed Aikens‘s claim, thereby inducing him unwittingly to pursue a litigation strategy that ultimately prevented his claim from being heard. Afforded the opportunity to set the matter straight, the court instead perpetuated and compounded its earlier mistake. In such circumstances, I cannot help but hold a definite and firm conviction that, by denying Aikens‘s
The majority holds that the district court did not abuse its discretion because it supposes that Aikens may have had other litigation alternatives. However, the majority offers no support for the contention that the presence of other litigation alternatives—even if true—would justify the district court‘s denial of Aikens‘s motion. The district court‘s culpability for Aikens‘s statute of limitations predicament itself constitutes extraordinary circumstances such that the court abused its discretion by subsequently denying Aikens‘s
A.
The majority criticizes counsel for not appealing the district court‘s jurisdictional ruling. But what would Aikens have gained from an appeal? Less than seven months after the dismissal, Aikens was back before the court with an unequivocal decree that the ABCMR was an improper forum for this particular dispute, from no less an authority than the ABCMR itself. There was virtually no chance that we would have rendered a comparable judgment so quickly, given our systemic druth-
B.
True, counsel could have requested a stay while he attempted to proceed before the ABCMR. But, in accordance with procedures long established by the Supreme Court, the district court should have entered a stay on its own initiative. In Gen. Am. Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 60 S. Ct. 325, 84 L. Ed. 361 (1940), the Court confronted a dispute between a shipper of coconut oil and a supplier of railroad cars for rent, in which the latter ceased honoring its contract to credit the shipper with mileage allowances paid by the railroads using the rental cars to haul the shipper‘s goods. The car owner premised its refusal on an intervening decision of the Interstate Commerce Commission (“ICC“) that arguably rendered illegal the parties’ business arrangement.
A unanimous Court, speaking through Associate Justice Roberts, rejected the ICC‘s contention, as amicus curiae, that the federal courts lacked jurisdiction over the matter, observing that “[t]he action was an ordinary one in assumpsit on a written contract.” General American, 308 U.S. at 432. The Supreme Court nevertheless held that the district court “should not have proceeded to adjudicate the rights and liabilities of the parties in the absence of a decision by the [ICC] with respect to the validity of the practice involved in the light of the provisions of the Interstate Commerce Act.” Id. at 428. The Court confirmed that the dispute was within the administrative authority of the ICC to decide, although Congress had left it to the courts to enforce those lawful decisions. In so ruling, the Supreme Court issued an unambiguous directive to district courts:
When it appeared in the course of the litigation that an administrative problem, committed to the [ICC], was involved, the court should have stayed its hand pending the Commission‘s determination of the lawfulness and reasonableness of the practices under the terms of the Act. There should not be a dismissal,
but... the cause should be held pending the conclusion of an appropriate administrative proceeding. Thus, any defenses the [defendant] may have will be saved to it.
Id. at 433. Over the years, the Court has reinforced the proper procedure in these sorts of cases. See, e.g., United States v. Mich. Nat‘l Corp., 419 U.S. 1, 4-5 (1974) (documenting “common practice” of district courts to retain jurisdiction through stay while litigation proceeds through state courts, and noting that same procedure generally applies “when the resolution of a claim cognizable in a federal court must await a determination by an administrative agency having primary jurisdiction“). The primary jurisdiction doctrine applies “to claims properly cognizable in court that contain some issue within the special competence of an administrative agency. It requires the court to enable a ‘referral’ to the agency, staying further proceedings so as to give the parties reasonable opportunity to seek an administrative ruling.” Reiter v. Cooper, 507 U.S. 258, 268 (1993). It is distinguishable from the doctrine of exhaustion of administrative remedies, applicable to disputes where agency relief must be pursued as a prerequisite to redress in the courts, and requiring any such suit to be dismissed as premature. See id. at 269; Cavalier Tel., LLC v. Va. Elec. & Power Co., 303 F.3d 316, 322 n. 10 (4th Cir. 2002) (citing, inter alia, Reiter).
Absent an exhaustion bar, dismissal is generally proper only “where there is assurance that no party is prejudiced thereby.” Mich. Nat‘l at 5 (citing Far East Conference v. United States, 342 U.S. 570, 72 S. Ct. 492, 96 L. Ed. 576 (1952)); see also Reiter at 268-69 (approving dismissal without prejudice “if the parties would not be unfairly disadvantaged“). In Reiter, the Supreme Court declined to impose a requirement of ICC exhaustion as to counterclaims asserted in response to an adversary proceeding in bankruptcy, expressing its concern that “the limitations period for filing actions... could expire before the ICC acted.” 507 U.S. at 271.
As with Reiter, the prejudice inquiry in other cases has focused on limitations issues. See TON Servs., Inc. v. Qwest Corp., 493 F.3d 1225, 1242-43 (10th Cir. 2007) (acknowledging dismissal option “pending primary jurisdiction referral,” but counseling that “[w]here damages are sought and the relevant statute of limitations might preclude relief... a stay is likely to be preferable“); Guglielmo v. Long Island Lighting Co., 83 A.D.2d 481, 445 N.Y.S.2d 177, 183 (1981) (opining that, because of potential prejudice to plaintiff by running of statute of limitations, lower court “should have denied the cross motion for dismissal, and, after referring plaintiff to the PSC, should have, sua sponte, stayed this action pending the filing, and final resolution, of [an administrative] complaint” (citing Mich. National)); see also S.S.W., Inc. v. Air Transp. Ass‘n of Am., 191 F.2d 658, 664 (D.C. Cir. 1951) (endorsing General American approach in antitrust action upon primary jurisdiction referral to Civil Aeronautics Board). Had the district court in this case properly adhered to the dictates of General American and its progeny, the resultant stay would have wholly obviated any need for a lengthy appeal or for Aikens having to ultimately choose between the Scylla of
First, it is not entirely clear when the underlying cause of action accrued, although the Amended Complaint recites that “[o]n or about November 24, 2003, [Aikens] was informed that [Major David B.] Culbreth was... being involuntarily separated... based upon an e-mail message that Culbreth sent to [Aikens] on August 17, 2003.” J.A. 13. Further, on that same date, Aikens “was also informed that... [Adjutant General William E.] Ingram used illegal means to obtain the... subject email message... sent from Culbreth‘s personal email account at home in Fayetteville, North Carolina, to [Aikens] who was stationed in Camp Doha, Kuwait.” Id. Aikens‘s computer had been operational, however, almost from his arrival in Kuwait on April 21, 2003, and it is not inconceivable that if this case ever proceeded to discovery, the evidence might reveal an earlier accrual date.
Second, and more importantly, it is far from certain how much, if any, time since Aikens filed suit on April 27, 2006, ought to be excluded from the limitations calculus. Federal civil rights actions borrow the analogous state limitations period, and it has been assumed from the beginning that North Carolina‘s three-year period to commence personal injury actions governs here. Cf. Franks v. Ross, 313 F.3d 184, 194 (4th Cir. 2002). It is also true, however, that we apply the equitable tolling rules of the forum state. See Wade v. Danek Medical, Inc., 182 F.3d 281, 289 (4th Cir. 1999). Though the North Carolina courts accord parties one year after taking a voluntary dismissal to refile an otherwise time-barred action so long as the original suit was filed within the limitations period, see
Consequently, and notwithstanding counsel‘s understandable efforts to keep from conceding as stale any sort of claim his client may yet pursue, the precise date by which Aikens was required to file in order to forestall a legitimate limitations defense remains very much an open question. It was no less so on March 31, 2008, when, back before the district court, counsel had to decide how to proceed. Litigators, by training and experience, tend to be careful, risk-averse sorts, who are loath to leave the house with a mere belt keeping their pants in place, especially when they also have a perfectly good pair of suspenders hanging in the closet. I do not doubt for an instant that counsel, buoyed by the district court‘s express invitation to return in the initial proceeding, discounted the possibility of commencing a new suit as entailing needless risk of a meritorious limitations defense. Under the circumstances, counsel probably expected his
There is a relative paucity of North Carolina law lending insight as to the circumstances its courts might consider sufficient to justify equitable tolling of an applicable statute of limitations. A number of reported cases, however, involve some sort of misleading act or statement on the part of the defendant that justifiably induces the plaintiff to defer timely prosecution of the claim. See, e.g., Duke Univ. v. Stainback, 320 N.C. 337, 357 S.E. 2d 690 (1987) (ruling that defendant debtor could not invoke statute of limitations to bar action by plaintiff creditor where debtor and his lawyer had caused creditor to forbear from collection efforts by representations that creditor would be paid from proceeds of lawsuit against third party); Nowell v. Great Atl. & Pac. Tea Co., 250 N.C. 575, 108 S.E. 2d 889 (1959) (concluding that builder‘s intermittent actions and assurances in attempting to correct structural construction defects before finally disclaiming further responsibility served to toll limitations period).
Although this line of authority may suffer somewhat from lack of development, I can say with some confidence that the results in cases like Stainback and Nowell obtain primarily from an innocent plaintiff having been deceived, and only secondarily from the near inevitability that the defendant has been the instrument of that deception. Equity exists to reward the deserving, more so than to punish the culpable. See Stainback, 357 S.E. 2d at 692 (“Actual fraud, bad faith, or an intent to mislead or deceive is not essential to invoke the equitable doctrine of estoppel.“). The point is well illustrated in Carlile v. South Routt Sch. Dist. RE 3-J, 652 F.2d 981 (10th Cir. 1981). In Carlile, the plaintiff was allowed to maintain her Title VII action although it had been filed fifty-one days late. The plaintiff‘s dilatoriness was caused by an earlier order of the district court, entered within the commencement period, that granted a form motion allowing her to proceed without payment of fees and costs and appointing an attorney to represent her. The order further provided “[t]hat this action shall be deemed commenced upon filing of the aforesaid Motion.” Carlile, 652 F.2d at 983.
The Tenth Circuit dismissed an attempted appeal of the lower court‘s interlocutory decision permitting the case to go forward, notwithstanding that the defendant was in no way responsible for the late filing. In ruling on behalf of the plaintiff, the court of appeals reasoned that “inasmuch as she would suffer a considerable hardship if we were to set the order aside, we are obliged to permit the order to stand.” Carlile, 652 F.2d at 986. Subsequently, in declining relief to another late-filer, the Supreme Court of the United States cited Carlile with approval to distinguish its situation “where the court has led the plaintiff to believe that she had done everything required of her,” from the one in which a plaintiff of her own accord deems it sufficient to file a mere right-to-sue letter as an attempted substitute for a complaint. Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (per curiam). I presume that the North Carolina courts, if confronted with an analogous situation, would find Baldwin County and, in turn, Carlile persuasive authority. The upshot is that Aikens may yet have his day in court notwithstanding the majority‘s decision today.
This matter, however, should not have been enshrouded in such uncertainty. The district court in the proceedings below was confronted with a
D.
The majority professes its fear that reinstatement of Colonel Aikens‘s lawsuit in this lone instance would endanger the finality of judgments across the breadth of our domain, decreeing that the supposed mandate of the federal rules for strict deadlines admitting of few (or no) exceptions shall remain inviolate. In another case, the majority would be right to jealously protect the familiar, if amorphous, principle that litigation, at some point, must be suffered to end. In this case, however, the litigation has not been suffered to begin.
Why that should be is an utter mystery. Colonel Aikens has pleaded facts that, if true, invite outrage. The Complaint depicts a literally unwarranted intrusion into the private communiques of a citizen-soldier stationed many thousands of miles from home and serving in the best traditions of the nation‘s militia, humiliated and disgraced by a nominal superior in the pursuit of an unseemly personal vendetta. That the majority has picked this particular instance to stand on ceremony and strike a mortal blow against slovenly papering of the court file is baffling. Surely whatever interest the federal courts may have in conducting their gatekeeping function with spit-and-polish regimentation is necessarily at its nadir when the cause is just, the wayfarer worthy, and the path untrodden.12
The majority pays lip service to these notions of justice and fairness, declaring that we have required movants like Aikens to “have a meritorious claim or defense and that the opposing party not be unfairly prejudiced.” Nat‘l Credit Union, 1 F.3d at 264.13 Those additional requirements are not found in the text of
III.
At the end of the day, Colonel Aikens was right—and the district court was wrong—about whether so-called “exhaustion” before the ABCMR was necessary before Aikens could pursue his
If the majority‘s approach is all it takes to foreclose a finding of extraordinary circumstances for
I respectfully dissent, and I am pleased to state that Judge Motz, Judge Gregory, Judge Davis, and Judge Keenan concur in this dissenting opinion.
DAVIS, Circuit Judge, dissenting:
I am most pleased to join in full Judge King‘s compelling dissenting opinion. I write to offer a few additional observations.
Even a most astute student of this court‘s jurisprudence must be forgiven for failing to identify the “rule” of this case. As best as I can discern, the majority‘s admonishment to counsel facing analogous circumstances in the future seems to be: “Appeal everything, all the time, right away.” One might question if that is any way to run a (judicial) railroad. Judge King‘s excellent dissent, on the other hand, would have the salutary effect of encouraging district courts to correct their own errors when given the opportunity to do so. Here, the district court had that opportunity but elected to let it pass. We should reverse, signaling to district courts around the circuit that such opportunities should be seized, not abjured.
Despite its publication, and thus its precedential character, the majority opinion provides district courts with little guidance beyond the bare ruling itself—the highly fact-specific determination that, under the totality of the circumstances shown, the district court did not “abuse its discretion” in failing to find “extraordinary circumstances” under
We sometimes flash conflicting signals to the district courts as to how they might best exercise their discretion to administer the Federal Rules of Civil Procedure. Compare Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (declaring “the affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial [by granting summary judgment]“), with Andrew v. Clark, 561 F.3d 261, 271 (4th Cir. 2009) (“The Advisory Committee Notes... highlight the discretion that district courts are given to deny summary judgment motions even when the standard appears to have been met....“), and Forest Hills Early Learning Ctr., Inc. v. Lukhard, 728 F.2d 230, 245 (4th Cir. 1984) (“Even where summary judgment is appropriate on the record so far made in a case, a court may properly decline, for a variety of reasons, to grant it.“). But, on the whole, we endeavor to provide useful guidance to the district courts in the exercise of their considerable discretion in administering the civil rules. Regrettably, as Judge King‘s powerful dissent demonstrates, we have failed in that mission here.
The majority opinion purports to warn against a danger of “giv[ing]
In its discussion of the standard of review, the majority cites to two principal cases: Browder and National Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 265 (4th Cir. 1993). Ante at 501. Browder adopted the abuse of discretion standard in a footnote, citing to two circuit court cases. One of those, Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999 (7th midpage-ps n=522 Cir. 1971), actually looked to the merits of the underlying judgment on grounds of fairness:
While Rule 60(b) is not a substitute for an appeal and the finality of judgments ought not be disturbed except on very narrow grounds, a liberal construction should be given the rule to the end that judgments which are void or are vehicles of injustice not be left standing. Accordingly, we believe that the circumstances of this case, including the basis for the relief sought, are such that we may properly make a primary inquiry into the legality of the discovery orders and the procedures leading to the dismissal of movants’ claims.
450 F.2d at 1003. Among these circumstances was the fact that the district court employed “the drastic sanction of dismissal of [the movants‘] claims with prejudice.” The Seventh Circuit concluded its discussion of the proper standard of review by noting, “Under these circumstances, we believe that principles of fairness warrant our giving full consideration to the merits of movants’ arguments.” Id. at 1004. The court ultimately affirmed the denial of the
Similarly, in National Credit Union, we made clear:
We review denials of Rule 60(b) motions for abuse of discretion. “However, where default judgments are at issue, over the years this court has taken an increasingly liberal view of Rule 60(b)....” Although this case is not technically a default judgment, it resembles one closely enough for the usually strict standard of review to be tempered somewhat.
1 F.3d at 265. There, the movant/defendant was ruled to have admitted all items in plaintiff‘s request for admissions because the lawyer for a co-defendant, who claimed not to have been representing the movant, did not enter answers for him. The district court used these admissions to grant summary judgment to plaintiff with respect to the movant.
That case contains an interpretation of
We believe this case falls within subsection (b)(6), a “catchall provision which allows a court to grant relief for any reason....” Although “[t]he remedy provided by the Rule... is only to be invoked upon a showing of exceptional circumstances...,” we believe this case cries out for the exercise of that “equitable power to do justice.”
Id. at 266. The court went on to remand with instructions to vacate the underlying judgments.
Of course there are times when the facts surrounding consideration of a
Any suggestion that the “abuse of discretion” standard of review is some immutable mandate that ties the hands of appellate courts was convincingly debunked nearly thirty years ago by Judge Friendly:
When we look at the spectrum of trial court decisions, we find a wide variance in the deference accorded to them by appellate courts. In some instances the trial court is accorded broad, virtually unreviewable discretion.... In others, the trial judge‘s decision is accorded no deference beyond its persuasive power.... Our concern is with determinations where the scope of review falls somewhere between these extremes. How much deference should be accorded to various determinations along this continuum? Just as the answer to the constitutional inquiry “what process is due?” depends upon the costs and benefits of procedural safeguards in different instances, defining the proper scope of review of trial court determinations requires considering in each situation the benefits of closer appellate scrutiny as compared to those of greater deference.
Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 755-56 (1982). Disregard of this long-accepted reality runs a grave risk that substantial justice will be denied to those prejudiced by well-meaning district courts and well-intentioned appellate courts.
Thus, where, as here, a district court exercises its discretion in a case-dispositive manner, this court should scrutinize the exercise of that discretion with care to ensure that there has not been “an error of judgment” by the district court. Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 506 (4th Cir. 1977) (warning against the threat of becoming a “rubber stamp” as to dispositive, “door-slamming” orders of district courts). Where, as here, such a prejudicial error of judgment comes before us, we should correct the error. This approach is in keeping with this court‘s strong preference that cases be decided on their merits. Cf. Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 n. 3 (4th Cir. 2010) (“[W]e have long adhered to the sound public policy of deciding cases on their merits, and not depriving... part[ies] of [their] fair day in court.“).
Manifestly, no matter how ample a court‘s discretion, some decisions will fall outside of it. The fabric of the law may have many swatches of stubborn indeterminacy, but some legal questions really have a right answer, even when their resolution is committed to a court‘s discretion. And though in some familiar contexts legal error may survive federal appellate review, e.g., Harrington v. Richter, 562 U.S. 86 (2011) (noting that the Antiterrorism and Effective Death Penalty Act shields erroneous state court applications of federal law unless “there is no possibility fair-minded jurists could disagree that the state court‘s decision conflicts with [the Supreme] Court‘s precedents“), here we exercise direct review of our own lower court‘s application of federal law. See Kim McLane Wardlaw, Umpires, Empathy, and Activism: Lessons from Judge Cardozo, 85 Notre Dame L. Rev. 1629, 1634 (2010) (“A swing and a miss is a strike, and the umpire lacks discretion to call it otherwise.“).
The Supreme Court recently reminded us that “[a] trial court has wide discretion when, but only when, it calls the game by the right rules.” Fox v. Vice, 563 U.S. 826 (2011). In this instance, the district court‘s erroneous dismissal of the case in reliance on a requirement that Colonel Aikens exhaust a non-existent administrative remedy, coupled with its subsequent refusal to undo that erroneous order despite the availability of a specific rule of civil procedure designed precisely as a balm for such judicially-inflicted wounds, constituted a failure to “call[] the game by the right rules” and thus an abuse of its “wide discretion.” Id.
Assessing an exercise of discretion, every bit as much as exercising discretion in the first instance, is, like calling balls and strikes, an art and not a science. If indeed we are sometimes “umpires,” the en banc court, like the panels of this court, most often gets it right, but it sometimes makes the wrong call. Because, for the reasons stated so persuasively by Judge King, the en banc majority‘s decision in this case must be recorded in the “wrong call” column, I respectfully dissent.
FREDERICK AIKENS
Plaintiff-Appellant
Notes
Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
And
Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding. The district court‘s unpublished Rule 60(b) Order is found at J.A. 44-52.