993 F.2d 274
1st Cir.1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Nо. 92-2440
EVELYN COTTO AND EDWIN TORRES, ETC., ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Selya, Circuit Judge,
Feinberg,* Senior Circuit Judge,
and Stahl, Circuit Judge.
Peter John Porrata for appellants.
Fidel A. Sevillano del Rio, Assistant United States
Attorney, with whom Daniel F. Lopez Romo, United States Attorney,
was on brief, for appellee.
*Of the Second Circuit, sitting by designation.
SELYA, Circuit Judge. This appeal arises out of an
SELYA, Circuit Judge.
action brought against the United States by family members and personal representatives of an injured minor under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-2680 (1990). Long after the district court dismissed the case, plaintiffs sought to revivify it but failed. Believing, as we do, that the district court appropriately rebuffed the attempted resurrection, we affirm the judgment below. I. BACKGROUND
The incident that sparked this case occurred on December 13, 1987, when a small child, Alexis Agosto, caught his hand in a conveyer belt operated by an employee of the United States Department of Agriculture (DOA). On February 24, 1989, Agosto's parents and grandparents filed FTCA claims on Agosto's and their own behalf. On April 21, DOA responded, requesting medical records, itemized bills, and other details. Plaintiffs retained counsel. On November 29, 1989, their attorney notified DOA that he would supply pictures of Agosto's injured hand, apparently believing that the photographs would satisfy DOA's curiosity anent the extent of injury. He was wrong. DOA, unmollified, wrote to the lawyer on March 5, 1990, reiterating its need for the information previously requested and mentioning that plaintiffs' claim forms were incomplete. The letter also stated:
Please bear in mind that the claims must be
substantiated and that we must have the
information requested before a determination
can be made by [the appropriate official].
2
No
further action will be taken on these claims
until the information requested has been
received (emphasis in original).
Instead of submitting further particulars, plaintiffs brought suit. They alleged, inter alia, that "[n]o affirmative action as
to any settlement or responsibility has been taken by [DOA], although a copy of the medical record has been provided to them [sic]." This allegation was seemingly an endeavor to show that, despite the lack of an explicit denial, DOA had implicitly denied plaintiffs' claim, thus satisfying the FTCA's exhaustion requirement. See 28 U.S.C. 2675(a).
The government answered the complaint, asserting inter
alia that plaintiffs had yet to file a substantiated, completed
administrative claim, and, therefore, had not exhausted their administrative remedy. On August 27, 1990, a magistrate judge stayed proceedings for ninety days to allow plaintiffs a final opportunity "to provide defendant's claim specialist with the necessary documentation so that defendant may either accept or reject the claim." The stay proved unproductive. On November 28, 1990, the magistrate convened the next scheduled conference, noted plaintiffs' counsel's absence, and reported to the district judge that "the government will shortly move to dismiss the complaint for failure to exhaust administrаtive remedy." Even so, some settlement negotiations continued.
To make a tedious tale tolerably terse, the government, prodded by the district judge, moved for dismissal on May 15,
3 1991. The motion papers averred that plaintiffs had failed to prosecute their claims diligently at either the administrative or judicial levels. Among other things, the government proffered the affidavit of a local DOA staffer attesting to plaintiffs' failure to perfect their administrative claims. Without waiting for plaintiffs' objection, the district court dismissed the case with prejudice under Fed. R. Civ. P. 41(b). Judgment entered on May 28, 1991.1
At that point, plaintiffs and their lawyer, figuratively speaking, played the ostrich, burying their heads in the sand and ignoring the adverse judgment. They did not ask that the dismissal be vacated so that their opposition, see supra
note 1, might be more fully considered; they did not move for reconsideration of the order; they did not take an appeal; they did not seasonably seek post-judgment relief. Withal, plaintiffs suggest that they continued to pursue negotiations, eventually reaching what plaintiffs' counsel describes as a tentative agreement (ironically, with the same DOA representative who had executed the aforementioned affidavit) for a $60,000 settlement. They concede, however, that the United States Attorney's office declined to approve any settlement, presumably because the lawsuit had been dismissed with prejudice.2 They also concede
1Plaintiffs filed an opposition to the dismissal motion one day after the judge granted the government's motion but five days before final judgment entered.
2It is transparently clear that the DOA staffer had no authority to settle the claim without the approval of an appropriate Justice Department official or, perhaps, the
4 that they never asked the district court to enforce the supposed settlement. Rather, plaintiffs resumed their struthionine pose. It was not until September 28, 1992 sixteen months to the day after judgment entered that they filed a motion under Fed. R. Civ. P. 60(b)(6).3 The court below denied the motion without fanfare. This appeal followed. II. ANALYSIS
District courts enjoy considеrable discretion in deciding motions brought under Civil Rule 60(b). We review such rulings only for abuse of that wide discretion. See Teamsters,
Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v.
Superline Transp. Co., 953 F.2d 17, 19 (1st Cir. 1992);
Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1 , 3
(1st Cir. 1989); Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28
(1st Cir. 1988).
In this case, plaintiffs' theory seems to be that, because DOA's representative continued to negotiate after judgment entered, the lower court should have excused plaintiffs' failure to appeal or otherwise contest the dismissal. This
Secretary of Agriculture. See 28 U.S.C. 2672 (providing that
FTCA settlements in excess of $25,000 may only be effected with the prior written approval of the Attorney General or his designee; providing further that, apart from Justice Department personnel, only "the head of the agency" may serve as the Attorney General's delegeе).
3Plaintiffs' motion for relief from judgment mentioned the negotiations, but contained no substantiation for the claimed settlement: no confirmatory correspondence, no affidavit from the DOA official who allegedly participated in the negotiations, no affidavit from plaintiffs' lawyer.
5 contention has a variety of flaws. Without endeavoring to cover the waterfront, we offer four reasons why plaintiffs' theory is unavailing. In the course of that recital, we assume the truth of the fact-specific statements contained in plaintiffs' motion, but do not credit "bald assertions, unsubstantiated conclusions, periphrastic circum-locutions, or hyperbolic rodomontade." Superline, 953 F.2d at 18 .
First: Rule 60(b) seeks to balance the importance of
First:
finality against the desirability of resolving disputes on the merits. See id. at 19. The rule's first five subsections
delineate specific grounds for relief.4 In keeping with the
4The rule 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:
(1) mistake, inadvertence, surprise, or
excusable neglect;
(2) newly discovered evidence which by due
diligence could not have been discovered in
time to move for a new trial under Rule
59(b);
(3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party;
(4) the judgment is void;
(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 reasоn justifying relief from
the operation of the judgment.
The motion shall be made within a reasonable time, and
for reasons (1), (2), and (3) not more than one year
after the judgment order or proceeding was entered or
6 policy that "there must be an end to litigation someday," Ackermann v. United States, 340 U.S. 193, 198 (1950), the rule
imposes a one-year limit on motions that invoke clauses (1)-(3). While this limit does not apply in haec verba to clausе (6) as
the rule states, motions invoking clauses (4)-(6) must only "be made within a reasonable time" clause (6) is designed as a catchall, and a motion thereunder is only appropriate when none of the first five subsections pertain. See Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 863 & n.11 (1988);
Klapprott v. United States, 335 U.S. 601 , 613 (1949); Lubben v.
Selective Serv. Sys. Local Bd., 453 F.2d 645, 651 (1st Cir.
1972).
Here, plaintiffs' attempt to garb their motion in the raiment of clause (6) runs aground on the bedrock principle that clause (6) may not be used as a vehicle for circumventing clauses (1) through (5). The essence of plaintiffs' argument is that, under all the circumstances, their failure to contest the dismissal constituted understandable, ergo, excusable, neglect. On its face, that theory falls squarely within the encincture of Rule 60(b)(1) and, as such, plaintiffs' motion, filed more than one year after the entry of judgment, was time-barred. Sеe
Pioneer Inv. Servs. Co. v. Brunswick Assoc., 113 S. Ct. 1489,
1497 (1993) (explaining that, where "a party is partly to blame for the delay," post-judgment relief "must be sought within one
taken. Fed. R. Civ. P. 60(b).
7 year under subsection (1)").
Second: Plaintiffs' belated effort to set aside the
Second
adverse judgment also runs afoul of the admonition that Rule 60(b)(6) may not be used to escape the consequences of failure to take a timely appeal. See Ackermann, 340 U.S. at 197-200;
Mitchell v. Hobbs, 951 F.2d 417 , 420 (1st Cir. 1991); Lubben, 453
F.2d at 651; see also Ojeda-Toro, 853 F.2d at 28-29 (collecting
cases). In our adversary system of justice, each litigant remains under an abiding duty to take the legal steps that are necessary to protect his or her own interests. See Ackermann,
340 U.S. at 197 . Thus, Rule 60(b)(6) may not be used as a back- door substitute for an omitted appeal, and, in all but the most exceptional circumstances, a party's neglect to prosеcute a timeous appeal will bar relief under the rule. See Ackermann,
340 U.S. at 197-202; Mitchell, 951 F.2d at 420 ; United States v.
Parcel of Land, Etc. (Woburn City Athletic Club, Inc.), 928 F.2d
1, 5 (1st Cir. 1991); Lubben, 453 F.2d at 651 .
There are no sufficiently exceptional circumstances here. To be sure, plaintiffs strive to show the contrary. Citing United States v. Baus, 834 F.2d 1114 (1st Cir. 1987), they
argue that DOA acted in a Svengali-like manner, lulling them to sleep with settlement songs while the sands of time drained and the appeal periоd expired. This deception, they say, justifies relief under Rule 60(b)(6). The district court did not agree. Nor do we.
Baus is readily distinguishable. There, defendants
8 (the guarantors of a debt owed to a federal agency) moved, long after the fact, for relief from a judgment entered pursuant to a settlement agreement they had made with the United States. Id.
at 1115-16. We determined that the government had been dilatory in performing its side of the bargain аnd had probably breached its obligations under the settlement agreement. Id. at 1124-25.
We also noted that three Assistant United States Attorneys had assured the defendants that a further judicial determination of indebtedness was necessary before the United States could collect on the guarantees, and that the defendants relied on these assurances.5 Id. at 1117. In such straitened circumstances,
we ruled that the government, by virtue of a combination of dilatory practices, disregard of contractual obligations, and repeated assurances, had so muddied the waters that it "would result in manifest unfairness to deny relief" under Rule 60(b)(6). Id. at 1123.
The case at bar is far removed from Baus. The
plaintiffs' Rule 60(b)(6) motion makes no claim that, but for some misleading conduct attributable to the government, plaintiffs would have prosecuted a timely appeal. There is
5Furthermore, the judgment in Baus entered pursuant to a
stipulation; thus, the defendants had no right of direct appeal. After all, a party who has agreed to the entry of a judgment without any reservation may not thereafter seek to upset the judgment, save for lack of actual consent or a failure of subject matter jurisdiction. See Dorse v. Armstrong World Indus., Inc.,
798 F.2d 1372, 1375 (11th Cir. 1986); 9 James W. Moore et al., Moore's Federal Practice 203.06 (2d еd. 1993) ("A party that
consents to entry of a judgment waives the right to appeal from it.").
9 nothing in the present record to demonstrate that the government stalled the processing of the claims, breached any promise, or otherwise acted in bad faith; even in this court, plaintiffs do not suggest that the government ever said it would waive the exhaustion requirement or overlook the judgment's legal effect.6 There is, moreover, nothing to indicate any kind of impediment to plaintiffs' ability to protect their legal interests in a timely manner. Unlike in Baus, the plaintiffs instigated the
litigation. They knew the status of their claims at all stages. They could have appealed from the entry of judgment, but did not. And, finally, the plaintiffs appreciated the significance of the judgment.7
Because plaintiffs advance neither an objectively reasonable basis for not challеnging the judgment in a timely manner nor evidence indicating a pattern of affirmative action on the government's part which would have led a reasonably prudent
6The motion papers contain no allegation either that the DOA official who ostensibly conducted the negotiations knew about the entry of judgment or that plaintiffs' counsel discussed that subject with DOA personnel.
7It is beyond peradventure that plaintiffs recognized the import of the order dismissing the case with prejudice. It was for this very reason that plaintiffs, in their opposition to the Rule 41 motion, argued vociferously that they should be allowed to take a voluntary dismissal without prejudice under Rule 41(a)(1) rather than having their case dismissed with prejudice under Rule 41(b). In support of this position, plaintiffs claimed that negotiations were ongoing and settlement was "imminent." Given these contemporaneous statements, it is disingenuous of plaintiffs' counsel to suggest that the continuation of settlement negotiations led him to forgo an appeal, thinking that the judgment could not block the realization of a negotiated settlement.
10 person to believe that the dismissal order was something other than it was, Baus does not assist their cause. Rather, we think
that plaintiffs' situation is much more akin to Ackermann. After
suffering an adverse judgment in denaturalization proceedings and failing to prosecute a timely appeal, Ackermann sought relief under Rule 60(b)(6). 340 U.S. at 194-95. He alleged, inter
alia, that he relied upon advice from a government official who
assured him there was no need to appeal as he would ultimately be released. See id. at 196. In affirming the denial of
Ackermann's Rule 60(b)(6) motion, the Court stated:
It is not enough for petitioner to allеge
that he had confidence in [the government
official] . . . [A]nything said by [the
government official] could not be used to
relieve petitioner of his duty to take legal
steps to protect his interest in litigation
in which the United States was a party
adverse to him. Id. at 197 (citations omitted). In language which appears
patently pertinent to the pitiful predicament of the present plaintiffs, the Court concluded that, since Ackermann had made "a considered choice not to appeal," he "cannot not be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the [final] outcome." Id. at 198. So here. Even if plaintiffs
reasonably believed that DOA's representative had authority to negotiate a settlement, this belief in no way gave them an indeterminate carte blanche to ignore the district judge's entry of a final judgment. See, e.g., Lubben, 453 F.2d at 652
(suggesting that, so long as the decision not to take an appeal
11 was one of unfettered choice and free will, courts should refrain from speculating on the reasons why a laggard party did not seasonably pursue an attack on an adverse judgment).
We will not paint the lily. "[T]o justify relief under subsection (6), a party must shоw extraordinary circumstances suggesting that the party is faultless in the delay." Pioneer,
113 S. Ct. at 1497 . The instant plaintiffs do not qualify under so rigorous a standard. Their unilateral assumption that they could negotiate and settle their claims notwithstanding the court's decree falls woefully short of establishing either their own lack of fault or the kind of exceptional circumstances necessary for relief under Rule 60(b)(6).
Third: Assuming, for argument's sake, that plaintiffs'
Third:
motion was otherwise within the rule's purview, it would nevertheless fail on temporal grounds. We explain briefly.
A Rule 60(b)(6) motion "must be made within a reasonable time." What is "reasonable" depends on the circumstances. Cf., e.g., Sierra Club v. Secretary of the Army,
820 F.2d 513, 517 (1st Cir. 1987) (explaining that "reasonableness is a mutable cloud, which is always and never the same") (paraphrasing Emerson). Thus, a reasonable time for purposes of Rule 60(b)(6) may be more or less than the one-year
period established for filing motions under Rule 60(b)(1)-(3). See Planet Corp. v. Sullivan, 702 F.2d 123, 125-26 (7th Cir.
1983) ("The reasonableness requirement of Rule 60(b) applies to all grounds; the one year limit on the first three grounds
12 enumerated merely specifies an outer boundary.").
Here, plaintiffs waited sixteen months before filing their motion. This delay overlong in virtually any event
must be juxtaposed in this case against plaintiffs' bold assertion that the suрposed $60,000 settlement figure was agreed upon "within two months of the entry of the order of dismissal." Appellants' Brief at 7. If, as plaintiffs allege, they achieved so prompt a meeting of the minds, there is no valid excuse for having dawdled an additional fourteen months before alerting the district court to the changed circumstances. Such protracted delay scuttles any claim that plaintiffs' motion was "made within a reasonable time." See, e.g., Planet Corp., 702 F.2d at 126
(holding, on particular facts, that a six-month delay in making a Rule 60(b)(6) motion was unreasonably dilatory); Central
Operating Co. v. Utility Workers of America, AFL-CIO, 491 F.2d
245, 253 (4th Cir. 1974)(similar; four-month delay after notice of default judgment). Having failed to move for relief from the judgment within a reasonable time, plaintiffs' attempt to bootstrap the alleged settlement agreement onto their "exceptional circumstance" argument is futile.
Fourth: An additional precondition to relief under
Fourth:
Rule 60(b)(6) is that the movent make a suitable showing that he or she has a meritorious claim or defense. See Superline, 953
F.2d at 20; Woburn City Athletic Club, 928 F.2d at 5. The
plaintiffs stumble over this hurdle. Their motion for relief from judgment is utterly silent on the exhaustion issue and the
13 record is devoid of any indication that they, to this day, have ever complied with the FTCA's administrative claim requirements. Exhаustion of plaintiffs' administrative remedies is a jurisdictional prerequisite to the prosecution of their FTCA claims. See 28 U.S.C. 2675(a); see also Swift v. United
States, 614 F.2d 812, 814-15 (1st Cir. 1980). Thus,
notwithstanding plaintiffs' assertion that they received some settlement offer from DOA, the district court was entitled to conclude "that vacating the judgment [would] be an empty exercise." Superline, 953 F.2d at 20 .
III. CONCLUSION
We are not unsympathetic to plaintiffs' plight. It appears that a young boy sufferеd severe injuries; that at least one federal official believes the boy's claim should be compensated; and that, as matters stand, plaintiffs have quite likely been victimized by a series of blunders on their lawyer's
part (for which they may have a claim against him). But in our adversary system, the acts and omissions of counsel are customarily visited upon the client in a civil case, see, e.g.,
Link v. Wabash R.R., 370 U.S. 626 , 632-34 (1962); United States
v. $25,721, 938 F.2d 1417, 1422 (1st Cir. 1991); Woburn City
Athletic Club, 928 F.2d at 6; United States v. 3,888 Pounds of
Atlantic Sea Scallops, 857 F.2d 46, 49 (1st Cir. 1988), and we
see no legally cognizable basis for departing from this well- established principle here. On this poorly cultivated record, we cannot say that the district court abused its discretion in
14 refusing to reopen the final judgment.
We do not believe, however, that the lawyer's conduct should go unremarked. A judge has an abiding obligation to take or initiate appropriatе disciplinary measures against a lawyer for unprofessional conduct of which the judge becomes aware. See
ABA Code of Judicial Conduct Canon 3(D)(2) (1990). We are of the
opinion that plaintiffs' counsel's handling of this matter before the lower court raises serious questions from start to finish. We therefore direct the district judge to review the record, conduct such further inquiry as he may deem appropriate, and tаke or initiate such disciplinary action, if any, as is meet and proper, the circumstances considered. The clerk of the district court shall also mail a copy of this opinion (translated into the Spanish language if the district judge believes such translation would be advisable) to each of the plaintiffs, at their respective home addresses. See, e.g., Doyle v. Shubs, 905 F.2d
1, 3 (1st Cir.1990) (per curiam). Affirmed. Remanded to the district court, with instructions, for
consideration of a collateral matter.
15