An extraordinary motion was filed today in the U.S. District Court for the Southern District of Florida. In it, more than 30 retired federal judges urged the case’s formerly presiding judge to reopen the 1776 Fund case (Trump v. Internal Revenue Service) on allegations of fraud. These judges aren’t parties to the case, and, irregardless (as they say in Miami) the case was dismissed with prejudice. A few thoughts on this very weird filing.
1. It completely misstates the holding of the authority on which it primarily relies. As noted by Steven Duffield, the motion claims that a case, Kem Manufacturing v. Wilder, stands for the proposition that nonparties can allege fraud to get settled cases reopened. It does no such thing.
To begin with Kem is distinguishable in that the movant in Kem actually did have some privity of interest in the case. There, the parties to the underlying case had reached a settlement that was quite high. Kem, it turned out, was an indemnitor to the liable party. It therefore alleged that the settlor was improperly driving up Kem’s actual liability and sought to reopen the case under Rule 60(b). The court concluded that Kem might well have strong state-law defenses against the indemnity but the case was closed and nonparties can’t reopen cases under Rule 60(b) with fraud allegations absent extraordinary circumstances — which Kem did not present. It’s right up front: “We reject his assertion that he has standing under Rule 60(b).” Former judges, of course, have far less notional standing to object than an indemnitor, yet here we are.
But didn’t the court say that it was possible to do this in “extraordinary circumstances”? Yes, in throwaway dicta, it did. The problem is that the holding of the case was that Kem could not reopen it under Rule 60(b). The former judges actually make the astounding claim in that the “holding” of Kem was that nonparties can reopen it.
That’s not the holding. The holding was that Kem couldn’t. That is the opposite of what the retired judges claim. I tell associates that the most common mistake a young lawyer will make in briefing is to find some good language on Westlaw and cite it — without checking to see who won. The holding is what governs. Citing favorable language from a case where your “side” lost is a rookie mistake.
(Although perhaps this shouldn’t surprise anyone: Many of these lawyers filed a similarly extraordinary brief at the Supreme Court arguing that lower district courts shouldn’t be bound by emergency docket judgments because they typically don’t contain reasoning. This fundamentally misunderstands the practice of federal courts in a way that really makes you think about what these former judges were doing for all those decades.)
Furthermore, the former judges also claim that the 11th Circuit “allowed for” nonparties to allege fraud in extraordinary circumstances, citing Kem. This is an artful deception. You could argue that Kem allows for the possibility of that happening, but saying that the 11th Circuit allowed for it in Kem implies that the 11th Circuit has allowed it to actually happen. Maybe it has (I doubt it) but Kem is in no way authority for the proposition that the 11th Circuit has allowed nonparties to do this under Rule 60(b) because Kem’s denial was affirmed.
2. There are roughly 20 lawyers on this 13-page motion. Seriously? Michael Showalter could use his robots to write this solo in 30 minutes — and without the problems noted above.
3. A federal judge gets a commission to decide cases and controversies; it’s not a roving commission to right every alleged wrong done by Donald Trump forever after. It’s unseemly at best for these retired judges to be trading on the prestige of their former office for this kind of lazy partisanship. It’s also embarrassing given the error at the heart of the motion.
I don’t know if a party to a case dismissed with prejudice can reply to a disallowed 60(b) motion, but if the DOJ finds a way to do, I wonder if it will invoke the full professional experience on which the retired judges are trading. Will it note how Nancy Gertner recommended and stood by Rachael Rollins, the Boston U.S. attorney who resigned in disgrace? Will it observed that Mike Luttig, after being passed over for SCOTUS, was GC at Boeing during the 737 Max crisis? Will it point out that Mark Wolf was a witness for Sheldon Whitehouse against Clarence Thomas as a sitting judge? Or that he retired just as a misconduct inquiry was opened against him — with Wolf, of course, saying at the time that he was retiring to fight for democracy or somesuch?
With Trent McCotter performing the duties of the DAG, one can only hope.