Nos. 96-552 and 96-553


on writs of certiorari to the united states court of appeals for the second circuit

[June 23, 1997]

Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

The Court today finds a way to rehear a legal question decided in respondents' favor in this very case some 12 years ago. See Aguilar v. Felton, 473 U.S. 402 (1985). Subsequent decisions, the majority says, have undermined Aguilar and justify our immediate reconsideration. This Court's Rules do not countenance the rehearing here granted. For good reason, a proper application of those rules and the Federal Rules of Civil Procedure would lead us to defer reconsideration of Aguilar until we are presented with the issue in another case.

We have a rule on rehearing, Rule 44, but it provides only for petitions filed within 25 days of the entry of the judgment in question. See this Court's Rule 44.1. Although the Court or a Justice may "shorte[n] or exten[d]" this period, I am aware of no case in which we have extended the time for rehearing years beyond publication of our adjudication on the merits. Cf. Reid v. Covert, 354 U.S. 1 (1957) (original decision issued June 11, 1956; rehearing granted Nov. 5, 1956); Jones v. Opelika, 319 U.S. 103 (1943) (per curiam) (original decision issued October Term 1941; rehearing granted October Term 1942). Moreover, nothing in our procedures allows us to grant rehearing, timely or not, "except . . . at the instance of a Justice who concurred in the judgment or decision." This Court's Rule 44.1. Petitioners have not been so bold (or so candid) as to style their plea as one for rehearing in this Court, and the Court has not taken up the petition at the instance of Justice Stevens, the only still sitting member of the Aguilar majority.

Lacking any rule or practice allowing us to reconsider the Aguilar judgment directly, the majority accepts as a substitute a rule governing relief from judgments or orders of the federal trial courts. See Fed. Rule Civ. Proc. 60(b)(5). The service to which Rule 60(b) has been impressed is unprecedented, and neither the Court nor those urging reconsideration of Aguilar contend otherwise. See, e.g., ante, at 32-33; Tr. of Oral Arg. 11 (acknowledgment by counsel for the United States that "we do not know of another instance in which Rule 60(b) has been used in this way"). The Court makes clear, fortunately, that any future efforts to expand today's ruling will not be favored. See ante, at 33. I therefore anticipate that the extraordinary action taken in this case will remain aberrational.

Rule 60(b) provides, in relevant part:

"On motion and upon such terms as are just, the [district] court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (5) . . . it is no longer equitable that the judgment should have prospective application."

Under that rule, a district court may, in its discretion, grant relief from a final judgment with prospective effect if the party seeking modification can show "a significant change either in factual conditions or in law" that renders continued operation of the judgment inequitable. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992) (addressing modification of consent decree in institutional reform setting); see 12 J. Moore, Moore's Federal Practice §60.47[2][c], pp. 60-163 to 60-166 (3d ed. 1997); 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2863, pp. 336-347 (2d ed. 1995) (hereinafter Wright, Miller, & Kane).

Appellate courts review denials of Rule 60(b) motions for abuse of discretion. See Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257, 263, n. 7 (1978); Railway Employes v. Wright, 364 U.S. 642, 648-650 (1961). As we recognized in our unanimous opinion in Browder, "an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review." 434 U. S., at 263, n. 7. For in this context,

"[w]e are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting." United States v. Swift & Co., 286 U.S. 106, 119 (1932).

Cf. Illinois v. Illinois Central R. Co., 184 U.S. 77, 91-92 (1902) (cautioning against entertaining successive appeals of legal questions open to dispute in an initial appeal, and observing that tolerance of such appeals would allow parties, inter alia, to " `speculate on chances from changes in [a court's] members' ") (quoting Roberts v. Cooper, 20 How. 467, 481 (1858)).

In short, relitigation of the legal or factual claims underlying the original judgment is not permitted in a Rule 60(b) motion or an appeal therefrom. See 11 Wright, Miller, & Kane, §2863, p. 340 (Rule 60(b) "does not allow relitigation of issues that have been resolved by the judgment."); see also Fortin v. Commissioner, Mass. Dept. of Public Welfare, 692 F. 2d 790, 799 (CA1 1982) (warning against transformation of Rule 60(b) "modification procedure into an impermissible avenue of collateral attack"). Thus, under settled practice, the sole question legitimately presented on appeal of the District Court's decision denying petitioners' Rule 60(b)(5) motion to modify the Aguilar injunction would be: Did the District Court abuse its discretion when it concluded that neither the facts nor the law had so changed as to warrant alteration of the injunction?

The majority acknowledges that there has been no significant change in factual conditions. See ante, at 9-10. The majority also recognizes that Aguilar had not been overruled, but remained the governing Establishment Clause law, until this very day. See ante, at 10-11, 30. Because Aguilar had not been overruled at the time the District Court acted, the law the District Court was bound to respect had not changed. The District Court therefore did not abuse its discretion in denying petitioners' Rule 60(b) motion.

We have declared that lower courts lack authority to determine whether adherence to a judgment of this Court is inequitable. Those courts must "follow the [Supreme Court] case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989); see also ante, at 31-32. The District Court would have disobeyed the plain command of Shearson/American Express had it granted petitioners' Rule 60(b) motion based upon a view that our more recent Establishment Clause decisions are in tension with Aguilar.

Without the teaching of Shearson/American Express, Rule 60(b) might have been employed in a case of this kind. Before that firm instruction, lower courts sometimes inquired whether an earlier ruling of this Court had been eroded to the point that it was no longer good law. See, e.g., Rowe v. Peyton, 383 F. 2d 709, 714 (CA4 1967), aff'd, 391 U.S. 54 (1968); Perkins v. Endicott Johnson Corp., 128 F. 2d 208, 217-218 (CA2 1942), aff'd, 317 U.S. 501 (1943); Healy v. Edwards, 363 F. Supp. 1110, 1117 (ED La. 1973), vacated and remanded for consideration of mootness, 421 U.S. 772 (1975) (per curiam); Browder v. Gayle, 142 F. Supp. 707, 716-717 (MD Ala.), summarily aff'd, 352 U.S. 903 (1956). Shearson/American Express now controls, however, so the District Court and Court of Appeals in this case had no choice but to follow Aguilar. Of course, "[a] district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law," Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (cited ante, at 32), but the District Court made no legal error in determining that Aguilar had not been overruled. And our appellate role here is limited to reviewing that determination.

The Court says that the District Court was right to "entertai[n]" the Rule 60(b) motion and also right to reject it, leaving to this Court the option of overruling our previously binding decision. See ante, at 32. The Court thus acknowledges that Rule 60(b)(5) had no office to perform in the District Court, given the no competence instruction of Shearson/American Express. All the lower courts could do was pass the case up to us. The Court thus bends Rule 60(b) to a purpose--allowing an "anytime" rehearing in this case--unrelated to the governance of district court proceedings to which the rule, as part of the Federal Rules of Civil Procedure, is directed. See Fed. Rule Civ. Proc. 1.

In an effort to make today's use of Rule 60(b) appear palatable, the Court describes its decision not as a determination of whether Aguilar should be overruled, but as an exploration whether Aguilar already has been "so undermined . . . that it is no longer good law." Ante, at 11; see also ante, at 16-29. But nothing can disguise the reality that, until today, Aguilar had not been overruled. Good or bad, it was in fact the law.

Despite the problematic use of Rule 60(b), the Court "see[s] no reason to wait for a `better vehicle.' " Ante, at 34. There are such vehicles in motion, and the Court does not say otherwise. See, e.g., Committee for Public Ed. and Religious Liberty v. Secretary, U. S. Dept. of Ed., 942 F. Supp. 842 (EDNY 1996) (PEARL II); Helms v. Cody, 856 F. Supp. 1102 (ED La. 1994); cf. Brief for U. S. Secretary of Education 45 (noting that a school district other than New York City could bring an action against the Secretary to challenge an Aguilar-based Title I funding decision). The Helms case, which has been appealed to the Fifth Circuit, involves an Establishment Clause challenge to Louisiana's special education program. In PEARL II, the District Court upheld aspects of New York City's current Title I program that were challenged under the Establishment Clause. The plaintiffs filed a notice of appeal in that case, but the parties later stipulated to withdraw the appeal, without prejudice to reinstatement, pending our decision in this case. See Stipulation of Withdrawal of Appeal in Committee for Public Ed. and Religious Liberty v. Secretary, U. S. Dept. of Ed., No. 96-6329 (CA2) (filed Mar. 20, 1997).

Unlike the majority, I find just cause to await the arrival of Helms, PEARL II, or perhaps another case in which our review appropriately may be sought, before deciding whether Aguilar should remain the law of the land. That cause lies in the maintenance of integrity in the interpretation of procedural rules, preservation of the responsive, non agenda setting character of this Court, and avoidance of invitations to reconsider old cases based on "speculat[ions] on chances from changes in [the Court's membership]." Illinois Central R. Co., 184 U. S., at 92.