Oрinion for the Court filed by Senior Circuit Judge WILLIAMS.
The five plaintiffs here are civilians who were employed as National Guard Technicians in the Department of Defense until their involuntary separation from service in 1993 and 1994. The then-effective version of 5 U.S.C. § 3329 provided that employees such as plaintiffs who were involuntarily separated “shall, if appropriate written application is submitted within 1 year after the date of separation, be offered a position ... not later than 6 months after the date of the application.” 5 U.S.C. § 3329(b) (1992). Specifically, such technicians were entitled to a competitive service position in the Department of Defense for which the rate of basic pay was to be “not less than the rate last received for technician service before separation.” 5 U.S.C. § 3329(c)(4) (1992).
Although plaintiffs submitted timely applications, the Secretаry of Defense failed to offer them appropriate positions within the statutory time limit. In 1996 plaintiffs brought suit in district court seeking equitable relief to enforce the provisions of § 3329. The district court in due course found that plaintiffs could bring suit in light of the partial waiver of sovereign immunity in the APA, which permits district courts to grant “relief other than money damages,” 5 U.S.C. § 702, reasoning that plaintiffs sought only equitable relief that was, in the language of our cases, “not negligible in comparison with the potential monetary recovery.” See
Kramer v. Cohen,
Civ. Action No. 96-497, Memorandum Order at 4 (D.D.C. Apr. 8, 1997);
Kidwell v. Department of Army, Board for Correction of Military Records,
*790
One plaintiff (Ainslie) brought suit in the Court of Federal Claims in 2001, seeking back pay for the period from July 31, 1995 through January 7, 1996 — the time between the dates of his retroactivе appointment and of his actual reemployment with the Department. The Tucker Act waived sovereign immunity for the claim, 28 U.S.C. § 1491, and the cause of action rested on the Back Pay Act, 5 U.S.C. § 5596(b)(1), which affords an agency “employee” back pay to correct certain “unjustified or unwarranted personnel action[s].” The Court of Federal Claims observed that under 5 U.S.C. § 2105(a) an “employee” for purposes of Title 5 must not only have been “appointed” in the civil service (as were the five plaintiffs, per the district court’s order), but must have fulfilled two additional requirements — have been (1) “engaged in the performance of a Federal function under authority of law or an Executive act” (2) while being “subject to the supervision” of a specified class of officials. Because Ainslie had not satisfied the additional requirements, the court denied his claim.
Ainslie v. United States,
In light of Ainslie’s lack of success before the Court of Federal Claims and the Federal Circuit, all of the plaintiffs returned to the district court in 2005 seeking clarification of its 1999 order. Under Federal Rule of Civil Procedure 60(b)(6), “[o]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for ... any ... reason justifying relief from the operation of the judgment.” The court granted plaintiffs’ motion and said:
Insofar as the court’s previous order was intеrpreted to provide for only a change in the date of “appointment” rather than the date of “employment,” the court is now stating with “redundant clarity” that it intends for plaintiffs to be deemed employed as well as appointed on the dates they would have been employed hаd defendant not violated 5 U.S.C. § 3329.
Kramer v. Rumsfeld, Civ. Action No. 96-00497, Order at 2 (D.D.C. Aug. 9, 2005).
Because relief under Rule 60(b)(6) is appropriate only in “extraordinary circumstances,”
Ackermann v. United States,
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With one exception unique to plaintiff Fangerow, we resolve this case on the ground that the district court improperly exercised its authority to reopen a final judgment and award relief under Rule 60(b)(6). Cоnsequently, we need not reach the larger jurisdictional question — whether the district court’s 2005 order was in essence an award of money damages in contravention of 5 U.S.C. § 702. Before we can reach this conclusion, though, we must answer two antecedent questions. First, can a federal court, сonsistent with
Steel Company v. Citizens for a Better Environment,
Steel Company
makes clear that jurisdiction is a “threshold matter,”
id.
at 94,
But even if a reading of Rule 60(b)(6) should be the sort of law-declaring activity that courts must avoid until resolving the issues made primary by
Steel Company,
those primary issues related to Article III jurisdiction, not, as here, to a statutory limit (even one classified as jurisdictional for many purposes).
Steel Company
explicitly recognized the propriety of addressing the merits where doing so made it possible to avoid a doubtful issue of
statutory
jurisdiction; the case excluded such jurisdiction from the rule of absolute priority that it established for Article III jurisdictiоn. See
Steel Company,
Next, we must address whether we may resolve this case on the impropriety of Rule 60(b)(6) relief when the appellаnt failed to raise such an objection. Ordinarily we do not consider non-jurisdictional issues that litigants didn’t raise and that the district court didn’t resolve.
United States ex rel. Totten v. Bombardier Corp.,
The Supreme Court has noted that cоurts should grant Rule 60(b)(6) motions only in “extraordinary circumstances.”
Ackermann,
For purposes of plaintiffs’ hoped-for recovery under the Back Pay Act the retroactive “appointment” they initially sought could not possibly have constituted “employment.” The Back Pay Act defines an “employee” as someonе who has been appointed to the civil service, engaged in the performance of a federal function, and done so under the supervision of an appropriate appointing authority, as defined by the statute. 5 U.S.C. § 2105(a). The difference between “employment” and “appointment” is more than semantic. Someone who has received appointment might “never achieve the status of employee,”
Ainslie,
Further, although we need not resolve thе point, plaintiffs’ omission of any request for an order declaring that they had met the other two criteria for classification as an “employee” under 5 U.S.C. § 2105(a) may well have been strategic. It may have been designed
either
to obscure their goal of compensation under the Back Pay Aсt (and thus to enhance their argument that the relief sought in district court was “not negligible in comparison with the potential monetary recovery,”
Kidwell,
*793 The portions of the district court s Rule 60(b)(6) order unique to Fangerow pose a different issue. The court ordered the Secretary to offer Fangerow an appropriate “permanent, non-term appointment” and further ordered that the Secretary “shall not condition plaintiffs acceptance of the appointment upon repayment of his early retirement incentive payment, and plaintiff shall not be required to repay that payment to the government.” Kramer v. Rumsfeld, Civ. Action No. 96-00497, Order at 3 (D.D.C. Aug. 9, 2005).
This element of the order (rejection of the government’s purported condition) rested on a peculiarity of Fangerow’s сase that plaintiffs’ counsel explained in seeking Rule 60(b)(6) relief. As had the other plaintiffs, Fangerow received an offer of appointment based on the district court’s 1999 order. But “defendant informed plaintiff Fangerow that if defendant were to offer and Fangerow were to acceрt the offer required by ... the Court’s [1999] judgment, defendant would make Fanger-ow’s appointment a four-year term appointment. Defendant then said that term appointees are not eligible for early retirement incentive payments and that, because Fangerow previously had accеpted a $25,000 early retirement incentive, he would have to return the $25,000 to the government in order to receive the relief the Court had ordered.” Memorandum in Support of Plaintiffs’ Motion at 5 n. 2, Kramer v. Secretary of Defense, Civ. Action No. 96-00497 (D.D.C. Aug. 9, 2005).
These are extraordinary circumstances that justify relief under Rule 60(b)(6). Fangerow had independently recеived an early retirement incentive and, later, a court-ordered offer of appointment. But the Secretary indicated that he would only conditionally comply with the district court’s order — i.e., only if Fangerow forfeited the early retirement incentive. If a plaintiff receives a judgment, the liable party cannot normally attach conditions to its fulfillment of the judgment; otherwise, parties could willfully flout a court’s legitimate authority. Here, so far as appears, Fangerow had no reason to think that the government would try to condition its compliance with the initial court order. Rule 60(b)(6) was thus an appropriate avenue for him to seek and the court to grant clarification that the offer of appointment was indeed independent of any earlier remuneration or incentive that Fangerow had received. (We express no opinion, however, on the merits of the modification, which the government does not challenge.) To the extent that the pertinent segments of the 2005 order (the first two sentences of paragraph 5) merely resolve this newly arising problem, the district court properly exercised its authority under Rule 60(b)(6). Furthermore, there can be no jurisdictional objection to the court’s authority to issue the clarification, as the court granted no additional relief but simply instructed the Secretary that he must unconditionally abide by the court’s 1999 order. As noted above, however, the use of Rule 60(b)(6) to award Fangerow retroactivе “employment” was outside the legitimate use of the Rule.
:[: ‡ i{? % :¡:
The district court’s 2005 order is, except with respect to the first two sentences of paragraph 5 (relating to plaintiff Fanger-ow’s early retirement incentive), hereby vacated as improper under Federal Rule of Civil Procedure 60(b)(6); the order is affirmed as to the first two sentences of paragraph 5.
So ordered.