No. 13-1461
VANDROTH BACKUS, et al.,
Appellants,
Vo
SOUTH CAROLINA, et al.,
Appellees.
On Appeal from the United States District Court
for the District of South Carolina
Motion to Dismiss or Affirm
Robert E. Stepp
Robert E. Tyson, Jr.
Benjamin P. Mustian
Tracey C. Green
SOWELL GRAY STEPP ~
Counsel of Record
LAFFITTE, LLC
WILLOUGHBY & HOEFER, P.A.
1310 Gadsden Street
Post Office Box 11449
Columbia, SC 29201
803.929.1400
rstepp@sowellgray.com
rtyson@sowellgray.com
930 Richland Street
Post Office Box 8416
Columbia, SC 29202
803.252.3300
bmustian@willoughbyhoefer.com
tgreen@willoughbyhoefer.com
August 8,2014
Questions Presented
The questions presented by Appellants are not
properly stated and fail to recognize the issues
legitimately before this Court. Sup. Ct. R. 15.2, 24.2.
Accordingly, Appellee states the questions presented
as follows:
1. Does this Court lack jurisdiction over a direct
appeal from the denial of relief pursuant to Federal
Rules of Civil Procedure 60(b)(5) and (6)?
2. May this Court consider on appeal from the
denial of Rule 60(b) relief a question presented
regarding the merits of the underlying judgment?
3. Did the district court abuse its discretion in
denying relief pursuant to Rules 60(b)(5) and (6)
where there is no judgment with prospective
application and where there are no "extraordinary
circumstances" warranting post-judgment relief?.
BLAN|~,
ii
Table of Contents
Page
Questions Presented .............................................i
Table of Contents .................................................ii
iv
Table of Authorities ............................................
2
Opinions Below ...........................................................
Jurisdiction ..................................................................2
2
Statutory Provisions and Rules Involved ..................
Statement of the Case .................................................4
1. Appellants improperly state facts not
material to consideration of the
questions presented ..........................................4
2. The facts material to the issues that are
7
properly before this Court ................................
9
Summary of Argument ...............................................
Argument ...................................................................11
1. This appeal should be dismissed for
lack of jurisdiction because 28 U.S.C.
§ 1253 does not allow direct appeals to
this Court from the denial of Rule 60(b)
relief ................................................................11
2. The first question presented by
Appellants should not be considered by
this Court because it is unrelated to the
proceedings below ...........................................14
3. There was no abuse of discretion in the
15
denial of Appellant’s Rule 60(b) motion ........
in
A. Because the March 9, 2012
Judgment and Order did not grant
injunctive relief or impose ongoing
supervisory provisions, it was not
prospective in nature as required for
Rule 60(b)(5) relief ....................................
16
B. Because Shelby County did not
change substantive redistricting law
outside of the context of the coverage
of section 5 of the Voting Rights Act,
the district court did not abuse its
discretion in finding that issuance of
that decision does not constitute
"extraordinary circumstances" as
required for Rule 60(b)(6) relief. ...............
19
Conclusion .................................................................
25
iv
Table of Authorities
Page(s)
Cases
Ackermann v. United States,
340 U.S. 193 (1950) .................................... 6, 15, 20
Agostini v. Felton,
521 U.S. 203 (1997) .................................. 18, 19, 23
Backus v. South Carolina,
133 S. Ct. 156 (2012) ..............................................8
Backus v. South Carolina,
857 F. Supp. 2d 553 (D.S.C. 2012) .............. passim
Boyd v. Bulala,
905 F.2d 764 (4th Cir. 1990) ...............................24
Browder v. Dir., Dep’t of Corr.,
434 U.S. 257 (1978) .................................... 4, 14, 15
Bush v. Vera,
517 U.S. 952 (1996) ..............................................21
Cano v. Baker,
435 F.Sd 1337 (11th Cir. 2006) ............................13
Cincinnati Ins. Co. v.
Flanders Elec. Motor Serv., Inc.,
131 F.3d 625 (7th Cir. 1997) ...............................18
Coleman v. Brown,
922 F. Supp. 2d 1004 (E.D. Cal.),
appeal dismissed sub nom.
Brown v. Plata,
134 So Ct. 436 (2013) ............................................ 12
Coltec Indus., Inc. v. Hobgood,
280 F.Sd 262 (Sd Cir. 2002) .................................18
V
Comfort v. Lynn Sch. Comm.,
560 F.3d 22 (lst Cir. 2009) ..................................18
Cook v. Birmingham News,
618 F.2d 1149 (5th Cir. 1980) .............................18
DeWeerth v. Baldinger,
38 F.3d 1266 (2d Cir. 1994) .................................18
Dowell by Dowell v. Bd. of Educ. of
Okla. City Pub. Sch., Indep. Dist. No. 89,
8 F.3d 1501 (10th Cir. 1993) ...............................18
Dowell v. State Farm Fire & Cas. Auto. Ins. Co.,
993 F.2d 46 (4th Cir. 1993) .................................15
Easley v. Cromartie,
532 U.S. 234 (2001) ............................................. 22
Gibbs v. Maxwell House,
738 F.2d 1153 (11th Cir. 1984) ...........................18
Gonzalez v. Automatic Emp. Credit Union,
419 U.S. 90 (1974) ......................................... 11, 12
Gonzalez v. Crosby,
545 U.S. 524 (2005) ....................................... 12, 21
Harper v. Va. Dep’t of Taxation,
509 U.S. 86 (1993) ...............................................21
Hicks v. Pleasure House, Inc.,
404 U.S. 1 (1971) .................................................14
Hornev. Flores,
557 U.S. 433 (2009) ....................................... 17, 18
Kalamazoo River Study Grp. v.
Rockwell Int’l Corp.,
355 F.3d 574 (6th Cir. 2004) ...............................18
Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847 (1988) ............................................. 20
vi
Maraziti v. Thorpe,
52 F.3d 252 (9th Cir. 1995) .................................18
McCorvey v. Hill,
385 F.3d 846 (5th Cir. 2004) ...............................13
Miller v. Johnson,
515 U.S. 900 (1995) ..............................................22
Mitchell v. Donovan,
398 U.S. 427 (1970) ..............................................11
Mobay Chem. Corp. v. Costle,
439 U.S. 320 (1979) ..............................................14
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977) ..............................................24
MTM, Inc. v. Baxley,
420 U.S. 799 (1975) ........................................ 11, 13
Pa. Pub. Util. Comm’n v. Pa. R.R. Co.,
382 U.S. 281 (1_965) ..............................................14
Reid v. Angelone,
369 F.3d 363 (4th Cir. 2004) ...............................12
Schwartz v. United States,
976 F.2d 213 (4th Cir. 1992) ......................... 16, 18
Shaw v. Hunt,
517 U.S. 899 (1996) ..............................................22
Shelby County v. Holder,
570 U.S .... 133 S. Ct. 2612 (2013) ........... passim
Stokors S.A. v. Morrison,
147 F.3d 759 (8th Cir. 1998) ...............................18
Twelve John Does v. Dist. of Columbia,
841 F.2d 1133 (D.C. Cir. 1988) ......................16, 18
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ..............................................24
vii
Constitutional Provisions
U.S. CONST. amend. XIV ...................................
passim
U.S. CONST. amend. XV ..........................................
7, 8
Statutes
28 u.s.c.
28 u.s.c.
28 u.s.c.
28 u.s.c.
~,8 u.s.c.
2284(b)(3) ........................................... 3, 13
42 U.S.C.
1973 .......................................... 7, 8, 21, 23
42 U.S.C.
1973b ................................................ 20, 24
42 U.S.C.
1973b(b) ........................................... 23, 24
42 U.S.C.
1973c .............................................. passim
1253 ................................................ passim
1281 (repealed) ......................................13
2284(a) .....................................................3
2284(b) .....................................................3
Rules
Sup. Ct. R. 15.2 ...................................................... i, 10
Sup. Ct. R. 18.6 ........................................................... 1
Sup. Ct. R. 24.1(g) .......................................................4
Sup. Ct. R. 24.2 ............................................................i
Fed. R. Civ. P. 60 ........................................................ 4
Fed. R. Civ. P. 60(b) .......................................... passim
Fed. R. Civ. P o 60(b)(5) ...................................... passim
Fed. R. Civ. P. 60(b)(6) ...................................... passim
Fed. R. Civ. P. 60(c)(2) ..............................................12
No. 13-1461
VANDROTH BACKUS, et al.,
Appellants,
SOUTH CAROLINA, et al.,
Appellees.
On Appeal from the United States District Court
for the District of South Carolina
Motion to Dismiss or Affirm
Pursuant to Supreme Court Rule 18.6, Appellee
Robert W. Harrell, Jr., in his capacity as Speaker of
the South Carolina House of Representatives,
respectfully moves the Court for an order dismissing
this appeal or, in the alternative, summarily
affirming the unanimous order entered on March 10,
2014 by a three-judge panel of the United States
District Court for the District of South Carolina.
This Court does not have jurisdiction over a direct
appeal from the denial of relief under Federal Rule
of Civil Procedure 60(b). Alternatively, the judgment
should be affirmed because the decision denying
Rule 60(b) relief is a routine application of wellsettled law pertaining to that rule and the district
court therefore did not abuse its discretion.
Opinions Below
The order of the three-judge district court
unanimously denying Appellants’ Motion for Relief
from a Judgment and Order seeking relief pursuant
to Federal Rules of Civil Procedure 60(b)(5) and (6) is
unreported but is included in the Appendix to the
Jurisdictional Statement. J.S. App. la-13a.
Jurisdiction
The order denying the Rule 60(b) motion was
entered on March 10, 2014. A notice of appeal was
filed on April 9, 2014. J.S. App. 14a-15a. The
jurisdictional statement was filed on June 6, 2014
and docketed on June 9, 2014. Although Appellants
filed a direct appeal pursuant to 28 U.S.C. § 1253,
jurisdiction is not authorized under that statute.
Statutory Provisions and Rules Involved
28 U.S.C. § 1253 states as follows:
Except as otherwise provided by law,
any party may appeal to the Supreme
Court from an order granting or
denying, after notice and hearing, an
interlocutory or permanent injunction
in any civil action, suit or proceeding
required by any Act of Congress to be
heard and determined by a district
court of three judges.
3
28 U.S.C. § 2284(a) states as follows:
A district court of three judges shall be
convened when otherwise required by
Act of Congress, or when an action is
filed challenging the constitutionality of
the apportionment of congressional
districts or the apportionment of any
statewide legislative body.
28 U.S.C. § 2284(b) states as follows in pertinent
part:
In any action required to be heard and
determined by a district court of three
judges under subsection (a) of this
section, the composition and procedure
of the court shall be as follows:
(3) A single judge may conduct all
proceedings except the trial, and enter
all orders permitted by the rules of civil
procedure except as provided in this
subsection. He may grant a temporary
restraining order on a specific finding,
based on evidence submitted, that
specified irreparable damage will result
if the order is not granted, which order,
unless previously revoked by the
district judge, shall remain in force only
until the hearing and determination by
the district court of three judges of an
application for a preliminary injunction.
A single judge shall not appoint a
master, or order a reference, or hear
and determine any application for a
4
preliminary or permanent injunction or
motion to vacate such an injunction, or
enter judgment on the merits. Any
action of a single judge may be reviewed
by the full court at any time before final
judgment.
Federal Rule of Civil Procedure 60 is set forth in
the Appendix to the Jurisdictional Statement. J.S.
App. 105a-106a.
Statement of the Case
1. Appellants improperly state facts not
material to consideration of the questions
presented.
The only question that Appellants may raise with
respect to the March 10, 2014 Order is whether the
district court abused its direction in denying Rule
60(b) relief. Browder v. Dir., Dep’t of Corr., 434 U.S.
257, 263 n.7 (1978) ("The Court of Appeals may
review the ruling only for abuse of discretion,
however, and an appeal from denial of Rule 60(b)
relief does not bring up the underlying judgment for
review."). The rules of this Court provide that the
statement of the case shall "set[ ] out the facts
material to the consideration of the questions
presented." Sup. Ct. R. 24. l(g). Therefore,
Appellants’ statement of the case should set out facts
material to the question of whether the district court
abused its discretion in denying Rule 60(b) relief, not
the underlying judgment.
Nonetheless, substantially all of Appellants’
statement of the case--13 of almost 14 pages in
total--sets forth facts pertaining to their original
claims, not to the denial of Rule 60(b) relief. They
5
discuss prior elections, the preclearance process, and
trial testimony leading up to the March 9, 2012
Judgment and Order. They also submit a number of
documents in the Appendix that were introduced as
part of the original trial and that are substantially
the same as those included in the Jurisdictional
Statement appealing from the underlying judgment.
Compare J.S. iv-v (listing as attachments, inter alia,
Sellers Testimony Transcript; Garrick Affidavits;
Brunell Testimony Transcript; Clyburn Affidavits;
and House BVAP Summary Table) with Backus v.
State, No. 11-1404, J.S. v-vi (listing as attachments,
inter alia, Sellers Testimony Transcript; Garrick
Affidavits; Brunell Testimony Transcript; Clyburn
Affidavits; and House BVAP Summary Table). These
facts are not material to the question of whether the
district court abused its discretion in denying Rule
60(b) relief.
Appellants’ statement of the case also improperly
attempts to reargue the factual findings that were
decided against them. For instance, Appellants
identify and attach affidavits by Congressman
James E. Clyburn and State Representative Mia
Butler-Garrick ~ and trial testimony by State
Representative Bakari Sellars concerning the
redistricting process and Appellants’ racial
gerrymandering claim. J.S. 11-14, 24. They use these
exhibits to renew their argument that race
1 Appellants improperly include portions of those affidavits
that were stricken by the district court even though they never
challenged those evidentiary rulings on direct appeal. They also
did not attach those affidavits as exhibits to their Rule 60(b)
motion. See Backus v. State, No. 3:11-cv-03120, ECF No. 223
(filing motion "to set aside this Courts March 9, 2012, Order,
ECF No. 214, and Judgment, ECF No. 215 .... ").
6
predominated in the General Assembly’s
redistricting decisions. However, the district court
expressly considered and rejected that testimony in
finding that "Plaintiffs have ... failed to prove any
legislative purpose that indicates race was the
predominant factor." Backus v. South Carolina, 857
F. Supp. 2d 553, 563-65 (D.S.C. 2012) (three-judge
panel).~ Appellants also use the testimony of Dr.
Michael P. McDonald to again argue that racial
motivations were behind the redistricting plans. J.S.
17 n.11. However, the district court expressly
analyzed and rejected Dr. McDonald’s testimony on
that point. Backus, 857 F. Supp. 2d at 561-63
("Because Dr. McDonald did not consider all of the
traditional race-neutral principles that guide
redistricting in South Carolina, the Court is
unconvinced by his opinion that the General
Assembly subordinated them to race.").
Because Appellants failed to prove their claims,
the testimony and exhibits introduced at the original
trial are not material to whether the district court
abused its discretion in denying Rule 60(b) relief.
Appellants’ attempt to reargue the district court’s
factual findings is nothing more than an improper
reach for a second appeal fi~om the original judgment
under the guise of a purported change in the law.
See Ackermann v. United States, 340 U.S. 193, 19798 (1950).
’~ Appellants reference but do not discuss an affidavit by
State Senator Bradley Hutto. J.S. 17 n.ll. However, the
district court found that the testimony of Senator Hutto, along
with that of Congressman Clybt~rn and Representative ButlerGarrick, did "not offer any convincing proof that race
predominated in the General Assembly’s drawing of the
relevant House and Congressional districts." Backus, 857 F.
Supp. 2d at 563-64.
2. The facts material to the issues that are
properly before this Court.
In November 2011, after administrative
preclearance was received pursuant to section 5 of
the Voting Rights Act, 42 U.S.C. § 1973c, Appellants
initiated an action challenging the redistricting
plans enacted by the South Carolina General
Assembly for the state House of Representatives and
Congress following the 2010 Census. They presented
four claims for relief: (1) an allegation of racial
gerrymandering in violation of the Fourteenth
Amendment; (2) an allegation that the redistricting
plans violated Section 2 of the Voting Rights Act;
(3) a somewhat unclear allegation of vote dilution in
violation of the Fourteenth Amendment; and (4) an
allegation of vote dilution and racial gerrymandering
in violation of the Fifteenth Amendment. J.S. App.
2a-3a.
After a trial on the merits held on March 1-2,
2012, the three-judge district court entered
judgment against Appellants on March 9, 2012.
Bac]~us, 857 F. Supp. 2d at 570. The district court
found that Appellants had failed to prove the
required elements of each of their claims. With
respect to the racial gerrymandering claim--the only
one presented in the Rule 60(b) motion, J.S. 3a-4a &
n.3--the district court found that Appellants did not
establish that race was a predominant factor in
drawing the redistricting plans because they did not
prove that the plans contained bizarre or highly
irregular district lines; that the legislature
subordinated traditional redistricting principles to
race; or that there was any legislative purpose
indicating that race was the predominant factor.
Backus, 857 F. Supp. 2d at 560. The district court
8
also found that Defendants "were able to disprove
that race was the predominant factor by
demonstrating that their decisions adhered to
traditional race-neutral principles." Id. This Court
summarily affirmed the judgment of the district
court on October 1, 2012. Backus v. South Carolina,
133 S. Ct. 156 (2012).
On August 29, 2013, Appellants filed a Motion for
Relief from a Judgment and Order in the district
court, seeking relief from part of the March 9, 2012
Judgment and Order pursuant to Federal Rules of
Civil Procedure 60(b)(5) & (6). Appellants contended
that this Court’s decision in Shelby County v. Holder,
570 U.S .... 133 S. Ct. 2612 (2013), constituted a
change in the law applied by the district court that
warranted Rule 60(b) relief with respect to their
Fourteenth Amendment racial gerrymandering
claim. Appellants only sought relief as to the
redistricting plan for the state House of
Representatives. They did not seek to reverse the
judgment with respect to the Congressional
redistricting plan. They also did not seek relief from
the underlying judgment with respect to their
original claims under section 2 of the Voting Rights
Act or the Fifteenth Amendment, or their unclear
vote dilution claim under the Fourteenth
Amendment. J.S. App. 3a-4a & n.3.
The same three-judge panel that entered the
original judgment issued the March 10, 2014 Order
unanimously denying Appellants’ Rule 60(b) motion.
J.S. App. 1a-13a. The district court first determined
that Appellants were not entitled to relief under
Rule 60(b)(5). J.S. App. 6a-10a. While also noting
that it was "persuaded neither by Plaintiffs’
interpretation of Shelby County nor their arguments
9
for applying or extending its holding to the present
case," J.S. App. 7a, the district court determined that
Appellants’ had failed to establish that the March 9,
2012 Judgment and Order was prospective in nature
as required for relief under Rule 60(b)(5). J.S. App.
7a~10a. The district court ruled that the March 9,
2012 Judgment and Order "is neither executory nor
does it involve the supervision or monitoring of the
Parties’ conduct or of changing electoral conditions."
J.S. App. 9a.
The district court also denied Appellants’ claim
for relief under Rule 60(b)(6), finding that they had
failed to establish the existence of extraordinary
circumstances as required for relief under that rule.
J.S. App. 10a-13a. The only basis for Rule 60(b) relief
cited by Appellants was this Court’s decision in
Shelby County. J.S. App. 11a-12a. The district court,
recognizing that the constitutionality of section 5
was not an issue in the original action and that
Shelby County addressed only the coverage formula
applicable under section 5, denied relief under Rule
60(b)(6). The court stated that it was "hardly
persuaded that a Supreme Court decision,
announced less than nine months after the Supreme
Court affirmed the very Judgment from which
Plaintiffs now seek relief, constitutes ’extraordinary
circumstances’ as contemplated and required by
Rule 60(b)(6)." J.S. App. 13a.
Summary of Argument
This Court does not have jurisdiction over a
direct appeal from the denial of Rule 60(b) relief.
Congress has authorized direct appeals to this Court
only from orders granting or denying a preliminary
or permanent injunction in a matter required by law
10
to be adjudicated by a three-judge district court. 28
U.S.C. § 1253. Because an order denying Rule 60(b)
relief neither grants nor denies injunctive relief and
because motions for Rule 60(b) relief may be
adjudicated by a single district judge, section 1253
does not authorize a direct appeal to this Court from
the March 10, 2014 Order. The appeal therefore
should be dismissed for lack of jurisdiction.
If this Court determines that it does have
jurisdiction over a direct appeal from the March 10,
2014 Order, the first question presented is improper
because it is unrelated to the proceedings before the
district court. See Sup. Ct. R. 15.2. Appellants seek a
second review of the judgment challenged in the
Rule 60(b) motion by asking this Court to consider
"[w]hether deliberate racial gerrymandering after
the 2010 Census must be justified by a compelling
state interest in the absence of § 5’s remedial
districting mandate?" J.S. (i). However, any appeal
from the denial of Rule 60(b) relief is limited to
considering whether the district court abused its
discretion and does not permit a review of the
underlying judgment.
Finally, the district court did not abuse its
discretion in determining that Appellants do not
meet the criteria for relief under Rules 60(b)(5) and
(6). Rule 60(b)(5) is inapplicable because the district
court’s March 9, 2012 Judgment and Order does not
have prospective application. J.S. App. 8a-10a. And
this Court’s issuance of the Shelby County decision
less than nine months after it affirmed the March
9, 2012 Judgment and Order does not in the
context of this case constitute the "extraordinary
circumstances" required to justify relief under Rule
60(b)(6). J.S. App. 13a. Therefore, even if this Court
11
does have jurisdiction over a direct appeal from the
denial of Rule 60(b) relief, it should summarily
dismiss the appeal or, alternatively, affirm the
judgment below because the district court did not
abuse its discretion in denying Rule 60(b) relief.
Argument
1. This appeal should be dismissed for lack of
jurisdiction because 28 U.S.C. § 1253 does
not allow direct appeals to this Court from
the denial of Rule 60(b) relief.
Because section 1253 authorizes a direct appeal
only from the grant or denial of injunctive relief in a
matter that was required to be heard by a threejudge court, the Court does not have jurisdiction over
this appeal. Section 1253 is interpreted narrowly,
Gonzalez v. Automatic Emp. Credit Union, 419 U.S.
90, 98 (1974), and "this Court’s jurisdiction under
that legislation is to be literally construed," Mitchell
v. Donovan, 398 U.S. 427, 431 (1970) ("It would
hardly be faithful to such a construction to read the
statutory term ’injunction’ as meaning ’declaratory
judgment.’"). The challenged order must involve
action on the merits of a request for injunctive relief.
MTM, Inc. v. Baxley, 420 U.S. 799, 804 (1975) ("[W]e
conclude that a direct appeal will lie to this Court
under § 1253 from the order of a three-judge federal
court denying interlocutory or permanent injunctive
relief only where such order rests upon resolution of
the merits of the constitutional claim presented
below."). The order also must involve a matter that a
three-judge panel was required to hear. Gonzalez,
419 U.S. at 95-96 & n.19. An order denying a motion
for Rule 60(b) relief does not meet either of these
12
requirements. See Coleman v. Brown, 922 F. Supp.
2d 1004 (E.D. Cal.) (denying Rule 60(b)(5) motion
with respect to injunction entered pursuant to
Prison Litigation Reform Act of 1996) (three-judge
panel), appeal dismissed for want of jurisdiction sub
nom. Brown v. Plata, 134 So Ct. 436, 437 (2013).
The March 10, 2014 Order denying Appellants’
motion for Rule 60(b) relief did not deny injunctive
relief. "Rule 60(b) allows a party to seek relief from a
final judgment, and request reopening of his case,
under a limited set of circumstances .... " Gonzalez v.
Crosby, 545 UoS. 524, 528 (2005) (emphasis added);
see also Reid v. Angelone, 369 F.3d 363, 368 (4th Cir.
2004) ("Since Rule 60(b) motions are used to
challenge final judgments, a proceeding involving a
Rule 60(b) motion is necessarily separate from the
proceeding giving rise to the underlying judgment.").
There was no question before the district court of
staying or enjoining the original judgment because a
Rule 60(b) motion expressly does not "affect the
judgment’s finality or suspend its operation." Fed. R.
Cir. P. 60(c)(2); see also Gonzalez, 419 U.S. at 96-97
& n.14 (rejecting argument that section 1253 gives
this Court jurisdiction over direct appeals from any
order that denies an "injunction in a literal sense").
Appellants also did not request injunctive relief as
part of their Rule 60(b) motion. J.S. App. 3a
("Plaintiffs ... request a hearing (m their Motion for
Relief, an order setting aside this Court’s Order and
Judgment, and a scheduling order for the submission
of briefing and argument .... "); see also Backus v.
State, No. 3:11-cv-03120, ECF No. 223 ("Motion to
set aside this Courts March 9, 2012, Order, ECF No.
214, and Judgment, ECF No. 215 .... "). Even if they
13
had, the district court’s rejection of that request as
part of denying the Rule 60(b) would not have been a
denial of injunctive relief on the merits but on the
failure to meet the standards of Rule 60(b). See
MTM, 420 U.S. at 799 (dismissal of case based on
abstention grounds was not a dismissal on the
merits of the plaintiffs claim). Simply put, an order
denying a Rule 60(b) motion does not deny an
injunction and therefore does not support
jurisdiction under section 1253.
Moreover, a three-judge panel was not required to
hear Appellants’ request for relief because a single
judge could have issued the order dismissing the
Rule 60(b) motion. Even in an "action required to be
l~eard and determined by a district court of three
judges," a single judge may "conduct all proceedings
except the trial, and enter all orders permitted by
the rules of civil procedure" except for appointing a
master, ordering a reference, hearing and
determining an application for a preliminary or
permanent injunction or a motion to vacate an
injunction, or entering judgment on the merits. 28
U.S.C. § 2284(b)(3). Because the order denying the
Rule 60(b) motion is "permitted by the rules of civil
procedure" and does not fall within any of the
exceptions in section 2284(b)(3), it could have been
decided by a single judge "even though the
underlying judgment was tried by a three-judge
court." Cano v. Baker, 435 F.3d 1337, 1341 (11th Cir.
2006) (three-judge court originally empaneled
pursuant to 28 U.S.C. § 1281 (repealed)); McCorvey
v. Hill, 385 F.Sd 846, 848 (5th Cir. 2004) (same).
Appellants therefore may not directly appeal to this
Court under section 1253 even though the March 10,
2014 Order was in fact entered by a three-judge
14
panel. Mobay Chem. Corp. v. Costle, 439 U.S. 320,
321 (1979) (no direct appeal to Supreme Court from
judgment of three-judge court that was improperly
convened); Pa. Pub. Util. Comm’n v. Pa. R.R. Co.,
382 U.S. 281, 282 (1965) (no jurisdiction to hear
appeal from injunction entered by three-judge
district court "[b]ecause a three-judge court was not
required" in that case); see also Hicks v. Pleasure
House, Inc., 404 U.S. 1, 2 (1971) (no direct appeal
from temporary restraining order that single judge
was authorized to enter pending convening of threejudge court).
Appellants are attempting a direct appeal to this
Court from a district court order that did not involve
the denial of injunctive relief on the merits and that
did not require the convening of a three-judge court.
The Court therefore should dismiss this case for
want of jurisdiction.
2. The first question presented by Appellants
should not be considered by this Court
because it is unrelated to the proceedings
below.
In their first question presented, Appellants ask
"whether deliberate racial gerrymandering after the
2010 Census must be justified by a compelling state
interest in the absence of § 5’s remedial districting
mandate?" J.S. (i). This question presents a
substantive argument regarding the merits of the
judgment entered over two years ago. Like
substantially all of Appellants’ statement of the case,
this question is improperly presented because "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. Instead of addressing the
15
district court’s reasoning for denying Rule 60(b)
relief and the proper standard for reviewing that
reasoning, Appellants ask this Court to review the
merits of the challenged judgment without regard to
the posture in which this case is presented. In so
doing, they violate the fundamental precept that
Rule 60(b) is not a substitute for appeal from the
original judgment. See Ackermann, 340 U.S. at 19798. Accordingly, even if the Court determines that it
has jurisdiction to entertain this direct appeal, it
should decline to consider the first question
presented by Appellants.
3. There was no abuse of discretion in the
denial of Appellant’s Rule 60(b) motion.
If the Court determines that it has jurisdiction
over this appeal, it nevertheless should summarily
dismiss the appeal or affirm the March 10, 2014
Order denying the Rule 60(b) motion. The district
court did not abuse its discretion in denying
Appellants’ motion for failing to comply with the
predicate requirements of Rules 60(b)(5) and (6).
Browder, 434 U.S. at 263 n.7.’~
~ In addition to the predicate requirements imposed by the
subsections of Rule 60(b), movants also must cross an "initial
threshold" of proving (1) timeliness; (2) a meritorious defense or
claim; (3) a lack of unfair prejudice to the opposing party; and
(4) exceptional circumstances. Dowell v. State Farm Fire & Cas.
Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993). However,
following circuit precedent, the district court proceeded directly
to considering whether relief would be appropriate under
subsection (5) or (6) of Rule 60(b). J.S. App. 5a-6a.
16
A. Because the March 9, 2012 Judgment and
Order did not grant injunctive relief or
impose ongoing supervisory provisions, it
was not prospective in nature as required
for Rule 60(b)(5) relief.
The March 9, 2012 Judgment and Order was not
prospective as required for relief under Rule
60(b)(5)~ because it simply denied all of Appellants’
claims and neither instituted an injunction nor
promulgated ongoing affirmative relief. J.S. App. 9a
("Moreover, the Court’s March 9, 2012 Judgment
and Order is neither executory nor does it involve
the supervision or monitoring of the Parties’ conduct
or of changing electoral conditions."); see Twelve
John Does v. Dist. of Columbia, 841 F.2d 1133, 1139
(D.C. Cir. 1988) (holding that, to be prospective, a
judgment must be "’executory’ or involved the
supervision of changing conduct or conditions").
Although the judgment--like all judgments--bound
the parties in some sense, that is insufficient to
establish a prospective effect. E.g., Schwartz v.
United States, 976 F.2d 213, 218 (4th Cir. 1992)
(holding that a construction of Rule 60(b)(5) "that a
judgment has prospective effect so long as the
parties are bound by it, would read the word
’prospective’ out of the rule"). In the exercise of its
discretion, the district court reviewed the judgment
and the allegations supporting Rule 60(b)(5) relief,
~1 Fed. R. Civ. P. 60(b)(5) (relief may be granted if "the
judgment has been satisfied, released or discharged; it is based
upon an earlier judgment that has been reversed; or applying it
prospectively no longer is equitable"). Appellants do not and
could not argue that "the judgment has been satisfied, released
or discharged" or that "it is based upon an earlier judgment
that has been reversed."
17
considered these issues, and correctly determined
that the judgment was not prospective. J.S. App. 6a10a.
Appellants’ argument that Horne v. Flores, 557
U.S. 433 (2009), requires treating the March 9, 2012
Judgment and Order as prospective was correctly
rejected by the district court. Horne involved a
request under Rule 60(b)(5) to modify a longstanding injunction requiring state officials to
comply with the Equal Educational Opportunities
Act. 557 U.S. at 440-42. But as recognized by the
district court, the entire analysis of Horne involved
the propriety of granting relief from enforcement
of a continuing injunction based on changed
circumstances. J.S. App. 8a n.7 (citing Horne, 557
U.S. at 447-48, 50). The first passage from Horne
cited by Appellants in fact recognizes that an order
must involve some form of ongoing court
enforcement to qualify for Rule 60(b)(5) relief: "The
rule authorizes a court to ’modify or vacate a
judgment or order if a significant change either in
factual conditions or in law renders continued
enforcement detrimental to the public interest.’" J.S.
29 (emphasis added) (citing Horne, 557 U.S. at 447).
That is precisely illustrated by the Court’s focus on
injunctions that infringe upon federalism concerns.
See Horne, 557 U.S. at 449 ("Iniunctions of this sort
bind state and local officials to the policy preferences
of their predecessors .... ") (emphasis added); see also
id. at 450 (noting the need for "courts to ensure that
responsibility for discharging the State’s obligations
is returned promptly to the State and its officials
when the circumstances warrant") (internal
quotation marks omitted). Horne addressed Rule
60(b)(5) relief from injunctions issued in the context
18
of institutional reform litigation, see J.S. App. 8a n.7,
and did not undertake to modify the consensus
among the courts of appeals that judgments that are
not executory or do not institute ongoing supervision
are not prospective within the meaning of Rule
60(b)(5). 5 Horne does not support Appellants’
argument.
Agostini v. Felton, 521 U.S. 203 (1997), also does
not support Appellants’ request for Rule 60(b)(5)
relief. In Agostini, a federal court had issued an
injunction prohibiting city officials from using public
funds to provide public school teachers and guidance
counselors at sectarian schools. Id. at 213. City
officials and some parents subsequently sought relief
from the permanent injunction under Rule 60(b)(5).
Id. at 214. This Court noted that Rule 60(b)(5) relief
is proper "when the party seeking relief from an
iniunction or consent decree can show a significant
change either in factual conditions or in law." Id. at
215 (emphasis added) (internal quotation marks
a Every court of appeals addressing the issue has held that
to be prospective under the rule, an order or judgment must be
executory or involve supervision of changing circumstances. See
Twelve John Does, 841 F.2d at 1139 (D.C. Cir. 1988); Comfort v.
Lynn Sch. Comm., 560 F.3d 22, 28 (lst Cir. 2009); DeWeerth v.
Baldinger, 38 F.3d 1266, 1275-76 (2d Cir. 1994); Coltec Indus.,
Inc. v. Hobgood, 280 F.3d 262, 272-73 (3d Cir. 2002); Schwartz,
976 F.2d at 218 (4th Cir. 1992); Cook c,. Birmingham News, 618
F.2d 1149, 1152 (5th Cir. 1980); Kalam.azoo River Study Grp. v.
Rockwell Int’l Corp., 355 F.3d 574, 587 (6th Cir. 2004);
Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 131 F.3d
625, 630 (7th Cir. 1997); Stokors S.A.v. Morrison, 147 F.3d
759, 762 (8th Cir. 1998); Maraziti v. Thorpe, 52 F.3d 252, 254
(9th Cir. 1995); Dowell by Dowell v. Bd. of Educ. of Okla. City
Pub. Sch., Indep. Dist. No. 89, 8 F.3d 1501, 1509 (10th Cir.
1993); Gibbs v. Maxwell Ho~,se, 738 F.2d 1153, 1155-56 (llth
Cir. 1984).
19
omitted). The Court ultimately held that Rule
60(b)(5) relief was warranted because the Court’s
decisional law had changed since the time the
injunction was entered. Id. at 237. However, Rule
60(b)(5) relief was available in Agostini because
there was an injunction with continuing effect. That
is not the case here.
The March 9, 2014 Judgment and Order denied
each of the claims in the Complaint, which did not
constitute an injunction and did not require ongoing
court enforcement. Appellants’ speculative
arguments regarding the future of House districts in
South Carolina, J.S. 30-31, pertain not to a judgment
with continuing effect, but to the fact that they were
denied judgment because they did not prove their
claims. Therefore, even incorrectly assuming Shelby
County was a change in the applicable decisional
landscape, see discussion infra Section 3.B., there is
no injunction, consent order, or other order with
prospective application from which the district court
could have granted relief under Rule 60(b)(5).
B. Because Shelby County did not change
substantive redistricting law outside of
the context of the coverage of section 5 of
the Voting Rights Act, the district court
did not abuse its discretion in finding
that issuance of that decision does not
constitute "extraordinary circumstances"
as required for Rule 60(b)(6) relief.
Rule 60(b)(6) allows a district court to grant relief
for "any other reason that justifies relief." However,
a Rule 60(b)(6) motion may not be "premised on one
of the grounds for relief enumerated in clauses (b)(1)
through (b)(5)," and "’extraordinary circumstances’
20
are required to bring the motion within the ’other
reason’ language." Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 863 & n.ll (1988);
see also Ackermann, 340 U.S. at 202 ("Neither
the circumstances of petitioner nor his excuse for
not appealing is so extraordinary as to bring him
within ... Rule 60(b)(6)."). The district court did not
abuse its discretion in determining that Shelby
County was not an extraordinary circumstance
warranting relief from the March 9, 2012 Judgment
and Order. J.S. App. 13a.
Appellants’ entire Rule 60(b)(6) argument is that
Shelby County warrants relief because it changed
everything about redistricting, so much so that it is
an extraordinary circumstance entitling them to
relief. J.S. 23 ("Shelby County is a seismic shift in
the constitutional landscape .... "). They assert that
although a "traditional equal protection analysis
places the burden on the state to show the use of
race is ’narrowly tailored’ to achieve a ’compelling’
governmental interest," id. at 21, "Shelby County
holds that the burdens imposed by § 5 were
unconstitutionally applied from 2006 forward," id. at
20. As an initial matter, this assertion is
inconsistent with the opinion itself, which holds that
the formula in section 4 "can no longer be used as a
basis for subjecting jurisdictions to preclearance."
Shelby County, 133 S. Ct. at 2631 (emphasis added).
Appellants nevertheless contend that from 2006
forward Shelby County eliminates a plaintiffs
burden to prove that race predominated in the
creation of a redistricting plan and instead requires
a strict scrutiny analysis "once [the plaintiff] makes
a threshold showing that a racial classification
21
exists." J.S. at 27. ~ They of course make this
argument to justify relief from their failure to prove
"that race predominated over traditional raceneutral principles" in the General Assembly’s
redistricting decisions. Backus, 857 F. Supp. 2d at
565. Appellants’ problem is that Shelby County does
not support this argument and, even assuming that
it does, the underlying judgment has become final
and there are no extraordinary circumstances to
justify relief.
A change in the law subsequent to a final
judgment is not by itself an extraordinary
circumstance. Crosby, 545 U.S. at 536 ("It is hardly
extraordinary that subsequently, after petitioner’s
case was no longer pending, this Court arrived at a
different interpretation."). This Court has held that
changes in the law are applied to cases pending on
direct review but not to cases that have become final.
Id.; Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97
(1993) ("When this Court applies a rule of federal
law to the parties before it, that rule is the
controlling interpretation of federal law and must be
G If adopted, Appellants’ argument would allow--if not
require--relitigation of every final judgment in a redistricting
case issued since at least 2006 with respect to a state covered
by section 5 in which the plaintiff lost on a Fourteenth
Amendment equal protection claim. Moreover, this
interpretation would subject to strict scrutiny any future
redistricting plan in which race is rationally considered
for other appropriate purposes-e.g., avoiding racial
discrimination in order to comply with section 2 of the Voting
Rights Act, 42 U.S.C. § 1973--with the legislative body
automatically carrying the burden to demonstrate that the plan
is narrowly tailored to achieve a compelling interest. But see
Bush v. Vera, 517 U.S. 952, 958 (1996) ("Strict scrutiny does
not apply merely because redistricting is performed with
consciousness of race.").
22
given full retroactive effect in all cases still open on
direct review and as to all events, regardless of
whether such events predate or postdate the
announcement of the rule.") (emphasis added).
Because the judgmentin this case became final
before Shelby County was decided--as the district
court noted, nine months after this Court affirmed
the March 9, 2012 Judgment and Order--the district
court did not abuse its discretion in determining that
extraordinary circumstances did not exist to warrant
Rule 600))(6) relief.
Furthermore, Shelby County is not pertinent to-much less a change in--the law applied by the
district court in the March 9, 2014 Judgment and
Order and, thus, cannot establish extraordinary
circumstances in the context of this case. In
analyzing Appellants’ Fourteenth Amendment racial
gerrymandering claim in the underlying Judgment
and Order, the district court applied this Court’s
existing precedent that a redistricting plan is subject
to strict scrutiny only if the plaintiff first proves that
the legislature subordinated traditional race-neutral
principles in favor of using race as the primary
consideration for drawing lines. Backus, 857 F.
Supp. 2d at 565; see Easley v. Cromartie, 532 U.S.
234, 241 (2001) ("Race must not simply have been a
motivation for the drawing of a majority-minority
district, but the predominant factor motivating the
legislature’s districting decision.") (internal
quotation marks and citations omitted); Shaw v.
Hunt, 517 U.S. 899, 905 (1996) ("The constitutional
wrong occurs when race becomes the "dominant and
controlling" consideration.") (quoting Miller v.
Johnson, 515 U.S. 900, 913 (1995)). In light of these
well-established standards and the testimony and
23
evidence presented at trial, the district court
concluded that Appellants "failed to demonstrate
that race predominated over traditional race-neutral
principles" and "that the General Assembly did not
overly rely on race in a manner that runs afoul of the
Fourteenth Amendment." Backus, 857 F. Supp. 2d at
565.
Contrary to Appellants’ assertion that the
"district court misunderstood that it was not being
asked to depart from precedent, but react to it," and
that its "mistake left it unable to appreciate the
consequences of leaving its judgment in effect," J.S.
32, there is nothing in Shelby County that would
have allowed the district court to conclude that this
Court had overruled its redistricting precedents
applicable to this case. Agostini, 521 U.S. at 237
("We reaffirm that if a precedent of this Court has
direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the
Court of Appeals should follow thecase which
Court the
directly controls, leaving to this
decisions.")
prerogative of overruling its own
(internal quotation marks and alterations omitted);
see J.S. App. 12a (citing Agostini). Shelby County
only holds unconstitu.tional the coverage formula
established in section 4(b) of the Voting Rights Act,
42 U.S.C. § 1973b(b), as an infringement upon the
principle of equal sovereignty of the states. 133 S.
Ct. at 2622-24 ("States must beseech the Federal
Government for permission to implement laws that
they would otherwise have the right to enact and
execute on their own, subject of course to any
injunction in a § 2 action."). Although Shelby County
refers to general voting trends and patterns, that
discussion--given only in the context of whether the
24
50-year old coverage formula of section 4(b)
remained valid--contains no analysis of this Court’s
redistricting precedent. Id. at 2624-28. Shelby
County therefore does not support Rule 60(b)(6)
relief because it does not directly or impliedly impact
the district court’s finding that "Plaintiffs have failed
to prove that race was the predominant factor in
creating the House ... plan[ ]." Backus, 857 F. Supp.
2d at 565. And because neither section 4 nor federalstate relations was an issue before the district court
with respect to the underlying judgment, Shelby
County is not a change in the law applied in the
March 9, 2012 Judgment and Order.7
Appellants are using Rule 60(b) as a device for
attempting a second appeal from the underlying
judgment,s They cannot, however, escape the fact
that judgment was rendered against them because of
a failure to prove their allegations. As the district
7 Thus, applying the threshold showings necessary to Rule
60(b) relief, Appellants also cannot establish that they have
meritorious arguments that could prevail if they are given
another opportunity to litigate the underlying issues. See, e.g.,
Boyd v. Bulala, 905 F.2d 764, 769 (4th Cir. 1990).
~ In citing to Village of Arlington I-Ieights v. Metropolitan
Housing Development Corp., 429 U.S. 252 (1977) and Mt.
Healthy City School District Board of Education v. Doyle, 429
U.S. 274 (1977), J.S. 27, Appellants fully demonstrate that this
case is an attempted second appeal because both of those cases
formed a substantial basis for their appeal from the underlying
judgment. However, those opinions pertain to vote dilution
claims and, thus, are inapplicable here. Moreover, the burden
of proof in vote dilution matters shifts only if the plaintiff first
establishes that the redistricting decisions were motivated by a
racially discriminatory purpose. Arlington Heights, 429 U.S. at
271. Thus, these opinions do not in any event assist Appellants
because they failed to prove that race predominated. Backus,
857 F. Supp. 2d at 563-65.
25
court found in the March 9, 2012 Judgment and
Order, Appellants "focused too much on changes that
increased the BVAP in certain districts and not
enough on how traditional race-neutral principles
were subordinated to race in making those changes."
Backus, 857 F. Supp. 2d at 565. Shelby County’s
invalidation of the coverage formula for section 5,
even coupled with speculative arguments
unsupported by the record, is not a basis for
relieving Appellants from the underlying judgment
because they "failed to demonstrate that race
predominated over traditional race-neutral
principles." Id. at 565. In short, Appellants cannot
legitimately
identify
any
extraordinary
circumstances because of their complete failures of
proof in the underlying case. The district court
therefore did not abuse its discretion in denying Rule
60(b)(6) relief.
Conclusion
For the foregoing reasons, this appeal should be
dismissed for lack of jurisdiction. Alternatively, the
Court should summarily dismiss the appeal or affirm
the judgment of the district court.
Respectfully Submitted,
Benjamin P. Mustian
Tracey C. Green
SOWELL GRAY STEPP & Counsel of Record
Robert E. Stepp
Robert E. Tyson, Jr.
LAFFITTE, LLC
WILLOUGHBY & HOEFER, P.A.
1310 Gadsden Street
Post Office Box 11449
Columbia, SC 29201
803.929.1400
930 Richland Street
Post Office Box 8416
Columbia, SC 29202
803.252.3300
August 8, 2014