(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 (1st 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 ...