Cotto v. United States

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 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 administrative 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 considerable 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 delegee).
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 reason 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 clause (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. See
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 prosecute 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 period 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 and 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 ed. 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 challenging 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 allege
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 show 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 supposed $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.
Exhaustion 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 suffered 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 appropriate 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 take
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