Summary
holding that a change in law effected by the Supreme Court after the Circuit had issued final judgment was not sufficiently extraordinary to warrant reconsideration under Rule 60(b)
Summary of this case from Elec. Privacy Info. Ctr. v. United States Dep't of Homeland Sec.Opinion
No. 08-5375.
Filed On: February 17, 2009.
BEFORE: Ginsburg, Rogers, and Garland, Circuit Judges.
ORDER
Upon consideration of the motion for leave to file initial submissions out of time, the opposition thereto, and the reply; the motion for leave to file opposition to the motion to extend time to file initial submissions, and the opposition thereto; the motion for summary affirmance, the opposition thereto, and the reply; and the motion for remand, the opposition thereto, and the reply, it is
ORDERED that the motion for leave to file opposition to the motion to extend time to file initial submissions be granted. See D.C. Cir. R. 27(h)(1). The Clerk is directed to file the lodged document. It is
FURTHER ORDERED that the motion for leave to file initial submissions out of time be granted. The court favors allowing foreign states to appear and assert defenses, even after the entry of a default judgment.See Practical Concepts, Inc. v. Rep. of Bolivia, 811 F.2d 1543, 1552 (D.C. Cir. 1987). The Clerk is directed to file the lodged documents. It is
FURTHER ORDERED that the motion for summary affirmance be granted and the motion for remand be denied. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). Appellants requested in their Rule 60(b)(6) motion that the district court determine whether they had stated a cause of action under sources of law other than 28 U.S.C. § 1605(a)(7), or generic common law. This court, however, previously held that appellants premised their complaint on § 1605(a)(7) and "did not point to any other specific source in state, federal, or foreign law for their cause of action" or offer an alternative cause of action "when asked to do so at oral argument." Acree v. Rep. of Iraq, 370 F.3d 41, 59-60 (D.C. Cir. 2004). The court therefore found "no cause to remand this case to the District Court in order to allow appellees to amend their complaint to state a cause of action under some other source of law." Id. Because this court vacated the district court's judgment, dismissed appellants' suit, and expressly declined to remand the case, id., the district court could not act contrary to this court's mandate to reconsider whether appellants stated a viable cause of action. See Role Models Am., Inc. v. Geren, 514 F.3d 1308, 1311 (D.C. Cir. 2008). To the extent appellants rely on the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), as permitting a cause of action, they have not shown that this intervening change in the law is an extraordinary circumstance warranting relief under Rule 60(b)(6) in this case. See Gonzales v. Crosby, 545 U.S. 524, 536-38 (2005); Agostini v. Felton, 521 U.S. 203, 239 (1997) (stating that subsequent developments in the law "rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)").
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.