Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 C 68 - Alfred Y. Kirkland, Judge.
Fairchild, Chief Judge, Swygert and Pell, Circuit Judges. Pell, Circuit Judge, dissenting.
The single issue in this appeal is whether the district court abused its discretion in denying defendant's Rule 60(b) motion to vacate the permanent injunction entered against it. For the reasons set forth below, we find the district judge properly exercised his discretion, and therefore affirm the judgment.
This proceeding began on January 9, 1974 when plaintiffs, members of the Marine Air Reserve, filed a complaint against the United States Marine Corps. Plaintiffs alleged that their constitutional rights were violated by defendant's policy prohibiting reservists from wearing short hair wigs to cover long hair while attending annual active training duty (summer camp).*fn1 Following an evidentiary hearing, the district court granted plaintiffs' request for a preliminary injunction. De Filippis v. United States, 370 F. Supp. 82 (N.D. Ill. 1974). On October 30, 1974, after another hearing, the court permanently enjoined the Marine Corps from enforcing its no-wig regulation against plaintiffs. This injunction was issued after the district court had determined that any legitimate governmental interest in the regulation was outweighed by its infringement of the reservists' personal liberties. No appeal was ever taken from this order.*fn2
On April 5, 1976, the United States Supreme Court decided Kelley v. Johnson, 425 U.S. 238, 47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976), which upheld the validity of police department hair grooming standards similar to those of the Marine Corps. As part of its decision, the Court held that the burden was not on the Government to justify the regulation, but rather that the burden was on the plaintiffs to demonstrate the absence of rational connection between the regulation and its purported purpose. Id. at 247.
Six months after Kelley was decided, the Marine Corps moved pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure to vacate the district court's earlier order, stating that "because of the recent Supreme Court ruling in the case of Kelley v. Johnson, 44 U.S.L.W. 4469 (1976), it would be inequitable to continue to enforce the permanent injunction . . . ." The Government specifically argued that Kelley had changed the law concerning the burden of proof, i.e., the burden should have initially been placed on plaintiffs to show no rational basis. The Government, however, neither filed affidavits nor offered testimony showing how continued enforcement of the injunction was inequitable. The district court denied the motion to vacate on January 24, 1977.
We begin our analysis by recognizing that a Rule 60(b) motion to vacate is not a substitute for an appeal. Ackermann v. United States, 340 U.S. 193, 198, 95 L. Ed. 207, 71 S. Ct. 209 (1950); Flett v. W.A. Alexander & Co., 302 F.2d 321, 324 (7th Cir.), cert. denied, 371 U.S. 841, 9 L. Ed. 2d 77, 83 S. Ct. 71 (1962). Rule 60(b) provides for extraordinary relief. Because of the interest in finality of judgments, Rule 60(b) requires a showing of exceptional circumstances or a grievous wrong evoked by new and unforeseen conditions. Ben Sager Chemicals International, Inc. v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir. 1977); Securities and Exchange Commission v. Advance Growth Capital Corp., 539 F.2d 649, 652 (7th Cir. 1976). Appellate review of a denial of a Rule 60(b) motion is limited to determining whether the district court abused its discretion. Ben Sager Chemicals, supra at 809; Beshear v. Weinzapfel, 474 F.2d 127, 130-31 (7th Cir. 1973).
Relief under Rule 60(b) is limited to one of the six grounds specified in the rule.*fn3 Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972). In this case defendant moved to vacate the injunction both under Rule 60(b)(5), allowing relief from the inequitable prospective application of a judgment,*fn4 and Rule 60(b)(6), the residual clause allowing relief for "any other reason justifying relief." A review of these subsections reveals that neither supports the Government's contentions.
The Government's claim under Rule 60(b)(6) can be disposed of easily. It must first be noted that (b)(6) is separate from and exclusive of the other five grounds specified in Rule 60(b). Ben Sager Chemicals, 560 F.2d at 810 n. 3; Bershad v. McDonough, 469 F.2d 1333, 1336 n. 3 (7th Cir. 1972). See Klapprott v. United States, 335 U.S. 601, 614-15, 93 L. Ed. 266, 69 S. Ct. 384 (1949). As the Government here invokes subsection (b)(5), it cannot also claim relief under (b)(6).*fn5
The question then is whether the Government has met its burden of demonstrating under Rule 60(b)(5) that inequity results from continued enforcement of the injunction.*fn6 This provision does not allow relitigation of issues that have been resolved by the judgment. Rather, it requires a change in the conditions that makes continued enforcement inequitable. 11 Wright & Miller, Federal Practice § 2863 (1973). As Mr. ...