Nelson v. City of Albuquerque

          (D.C. No. 1:10-CV-00553-JB-DJS) (D. N.M.)

          Before TYMKOVICH, Chief Judge, BRISCOE, LUCERO, HARTZ, HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, and CARSON, Circuit Judges.

          ORDER

         On April 16, 2019, the panel's opinion issued in this matter, and judgment issued the same day. An active judge of the court then called a poll, sua sponte, to consider en banc review of the panel decision. A majority of the active judges of the court voted not to rehear the case, and as a result the poll failed. See Fed. R. App. P. 35(a).

         Chief Judge Tymkovich and Judge Hartz voted to grant en banc rehearing. Judge Hartz has prepared the attached written dissent from the denial of en banc reconsideration, in which Chief Judge Tymkovich joins. Judge Bacharach has prepared the attached written concurrence supporting the denial of rehearing. Judges Briscoe, Matheson, Phillips and Moritz join in that concurrence.

          HARTZ, Circuit Judge, dissenting, joined TYMKOVICH, Chief Judge.

         I dissent from the denial of en banc review. The panel made two singular errors in reaching its decision. First, and most important, it made the unprecedented decision that a district court abused its discretion by correcting what it perceived as its prior clear error in response to a timely motion under Federal Rule of Civil Procedure 59(e). (Because the panel saw no need to review the merits of the district court's ruling, we can assume that it believed that the district court abused its discretion even if it had clearly erred in its previous ruling.) The panel based its holding on its view that the Rule 59(e) motion was an "improper Rule 59(e) motion because it had simply rehashed arguments from [an earlier] motion." Nelson v. City of Albuquerque, 921 F.3d 925, 927 (10th Cir. 2019) (emphasis added). I am aware of no decision by any federal court to the same effect. Our judicial tradition has strongly affirmed that a court in a civil case should be able to correct a mistake in response to a timely motion for reconsideration, thereby avoiding an unnecessary appeal. The panel's opinion is contrary to "the wisdom of giving district courts the opportunity promptly to correct their own alleged errors." United States v. Dieter, 429 U.S. 6, 8 (1976).

         Second, recognizing that this court has recently stated (correctly) that "[c]ertainly a motion under Rule 59(e) allows a party to reargue previously articulated positions to correct clear legal error," Hayes Family Trust v. State Farm Fire & Casualty Co., 845 F.3d 997, 1005 (10th Cir. 2017), the panel opinion tries to distinguish this case on the ground that this was the movant's second motion under Rule 59(e). This attempt to distinguish our precedent is wrong on three counts: (1) So long as the district court had jurisdiction and the motion was timely, it should be able to correct its errors even if this was the party's second motion. (2) All the authority relied on by the panel for stating that the motion was "improper" concerned initial Rule 59(e) motions, so we can be sure (given the extensive precedent) that whatever "improper" meant in those cases it did not mean that the district court should not correct clear error in response to such a motion. And, most remarkably, (3) the panel has insisted that the movant's prior motion was under Rule 59(e) even though it was a prejudgment motion and therefore doubtlessly not a motion under Rule 59(e). We should not evade in this manner our duty to address the merits of the district court's decision.

         Before discussing the applicable law, it is worth summarizing the procedural posture of this case relevant to the panel's decision. The district court conducted a trial on Plaintiff's claim that Defendants had violated his constitutional rights by using excessive force. The jury found that Plaintiff's rights had not been violated. Plaintiff had filed a motion for directed verdict on liability before the verdict was handed down and renewed the motion after judgment was entered. Defendants responded that there was sufficient evidence to support a finding that there had been no violation. The district court granted the motion, ruling that based on the evidence at trial the only reasonable verdict was that Defendants had used constitutionally excessive force. It set aside the verdict, ruled that Defendants were liable, and ordered a new trial on damages. Defendants moved for reconsideration, arguing that there was a reasonable view of the evidence that supported the verdict; they also argued, as they had before the verdict, that they were entitled to qualified immunity on the ground that the law was not clearly established. The district court denied the motion but said nothing about whether the law was clearly established. The parties then stipulated to the amount of damages, and the court entered final judgment. That was when Defendants filed the timely motion under Rule 59(e) that is the subject of this appeal. The district court granted the motion, holding that the court had clearly erred in setting aside the verdict, in part because the law had not clearly established that Defendants acted with constitutionally excessive force.

         The panel opinion did not express a view on the merits of the district court's decision. Nor do I. The sole issue before us is whether it was improper to grant the Rule 59(e) motion even if the district court had previously erred.

         Rule 59(e) says nothing about when relief under the Rule is appropriate. The complete text of the present version is: "A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." The Rule's purpose was just to "make[] clear that the district court possesses the power . . . to alter or amend a judgment after its entry," as had been declared by a divided Eighth Circuit panel in Boaz v. Mutual Life Ins., 146 F.2d 321 (8th Cir. 1944). Fed.R.Civ.P. 59, advisory committee 1946 note to Subdivision (e). Or, as a participant at the rules committee meeting that approved Rule 59(e) expresses it in his treatise, the provision "was adopted in order to clarify that the district court has the power to rectify its own mistakes in the period immediately following the entry of judgment." Moore's Federal Practice 3d, § 59.30 [1]. The chief effect of the rule was to set a deadline for such postjudgment motions (which was 10 days from entry of judgment in the original rule).

         The standards for determining when relief should or may be granted under Rule 59(e) are judge-made. Sometimes the district court decides to grant the motion even though the court still believes it reached the correct result on the record before it when it originally ruled on the issue, but newly discovered evidence or new law (a statute or precedential court decision) has come down since the issue was first raised. Ordinarily, however, the reason the court grants the motion is simply because it believes it made a mistake the first time around. The Supreme Court recently reminded us that federal judges are not immortal. We are also far from infallible. We overlook things, misread things, misunderstand the facts, or just misthink in the hurly-burly of dealing with heavy dockets or a busy life. (Just ask my law clerks.) A Rule 59(e) motion can alert the court to its prior error and permit correction. This is a good thing, not something to be avoided. To again quote Dieter, where the district court got a critical fact wrong, disallowing such motions may "prolong[] litigation and unnecessarily burden[] [appellate courts], since plenary consideration of an issue by an appellate court ordinarily requires more time than is required for disposition by a trial court of a petition for rehearing." 429 U.S. at 8.

         In accord with the Supreme Court's view, this court has stated: "Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Servants of the Paraclete v. Does, 204 F.3d 1005');">204 F.3d 1005, 1012 (10th Cir. 2000) (citation omitted). This approach furthers the proper relationship between the trial and appellate courts. "[T]he traditional concept has been that it is for the trial courts to dispense justice, with the appellate court sitting only to affirm or reverse their decisions. The notion that these questions [regarding a dispositive issue of law] should be left for the appellate courts to decide in the first instance is a novel one." 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2803 at 64 (hereinafter "Wright & Miller").

         Of course, we would not say that a court "misapprehended" something unless that something ("the facts, a party's position, or the controlling law," Servants of the Paraclete, 204 F.3d at 1012) had previously been presented to the court. See Vaughn v. Consumer Home Mort. Co., Inc., 470 F.Supp.2d 248, 258 (E.D.N.Y. 2007) (rejecting "the proposition that a motion for reconsideration must be denied simply because the cases or arguments that the court is alleged to have overlooked were before it when it issued its initial ruling[.] [I]ndeed, such a holding would defy the generally accepted meaning of the word 'overlooked.'"). Thus, we have said: "Certainly a motion under Rule 59(e) allows a party to reargue previously articulated positions to correct clear legal error." Hayes, 845 F.3d at 1005. Other circuits have acted accordingly. In Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 234 (4th Cir. 2008), the district court set aside a judgment under Rule 59(e) almost four years after the original judgment upon reconsideration of a previously presented argument. The appellate court said that "the district court did not err in granting a motion to reconsider," even though Rule 59(e) "is a remedy to be used sparingly." 547 F.3d at 241 n.8 (internal quotation marks omitted). At least one other circuit has taken this proposition one step further. In Firestone v. Firestone, 76 F.3d 1205, 1211 (D.C. Cir. 1996), the appellate court held that the district court had abused its discretion by not granting a Rule 59(e) motion re-arguing a proposition presented to the district court before judgment.

         Although what I have just said about Rule 59(e) is nothing new, it may seem inconsistent with other statements made about motions under the Rule. Thus, in Servants of the Paraclete, which I have just quoted in favor of granting Rule 59(e) motions that point out oversights or errors by the district court in prior rulings on the matter, we also said (after resolving the merits of the postjudgment motions):

[Motions for reconsideration under Rule 59(e)] are inappropriate vehicles to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion. Absent extraordinary circumstances, . . . the basis for the second motion must not have been available at the time the first motion was filed. . . . It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.

204 F.3d at 1012.^[1] We are not alone in voicing that sentiment. The Supreme Court has quoted with approval the statement in a leading treatise that Rule 59(e) "'may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.'" Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2810.1, 127-28 (2d ed. 1995)). But cf. Wright & Miller § 2810.1 at 158 (2012) (stating that a Rule 59(e) motion may be granted if the movant "demonstrate[s] that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based.")

         What could this mean? Once we prohibit arguing points raised in earlier motions and points that could have been raised in earlier motions, the only arguments left are those based on newly discovered evidence and new law. If, as the panel opinion indicates, any other motion is an "improper" Rule 59(e) motion, and if it is an abuse of discretion to grant an "improper" motion, even when the motion convinces the district court that it has made a clear error, then district courts would be well advised to reject the great bulk of Rule 59(e) motions by summarily reviewing them to make sure that they did not raise new authority or newly discovered evidence. If a motion did not survive this cut, it would be a waste of time to consider the merits of the motion, because even if the district court were convinced of its error, it could not do anything about it. Is the "need to correct clear error or prevent manifest injustice" no longer a "[g]round[] warranting a motion to reconsider"? Servants of the Paraclete, 204 F.3d at 1012. Is a Rule 59(e) motion no longer "appropriate where the court has misapprehended the facts, a party's position, or the controlling law"? Id. Is it truly improper to file in a civil case a motion for reconsideration such as that in Dieter, which presented no new facts or law?

         Given this apparent disconnect between the proper grounds for granting a Rule 59(e) motion and those for making such a motion, one could be forgiven for thinking that the courts are befuddled. But the seemingly contradictory statements above are no more than flip sides of the same coin. And what that coin purchases is discretion for the district courts. As Judge Selya colorfully described the point: "We have repeatedly held that, once the ball has ended, the district court has substantial discretion in deciding whether to strike up the band again . . . ." In re Sun Pipe Line Co., 831 F.2d 22, 25 (1^st Cir. 1987). District courts have substantial discretion to deny a Rule 59(e) motion, and substantial discretion to grant one. If a motion regurgitates old arguments or attempts to raise new arguments that could have been raised before, the district court does not abuse its ...