UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 17, 1944
Appeal from the District Court of the United States for the Western District of New York.
Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
This suit, as begun, was within the jurisdiction of the trial court for the United States, by the Tucker Act, 28 U.S.C.A. § 41(20), has given its consent to be sued in the district court for such a refund of taxes in an amount not to exceed $10,000. The United States in effect concedes that it owed Wallace the amount of the judgment for moneys it had obtained from him by duress, and that it would be obliged to repay him that sum but for the dismissal of his suit, through the excusable neglect of his lawyer, after the statute of limitations had run against his claim.
There seems to be no dispute that (for reasons we need not discuss) the dismissal order was improper under the local rules of the trial court. Even so, that order was not void and, if not validly vacated, it terminated the action so that the claim could no longer be asserted.The issue, then, is as to the validity of the order of February 14, 1941 reinstating the suit.
1. We are satisfied that the record shows that the trial court entered that order on the consent of government's counsel. If the defendant were a private person, that consent would conclude the matter and Wallace's judgment would be unassailable. But, assuming for the moment that, absent such consent by defendant's counsel, the trial court could not properly enter the vacating order (an issue we shall consider later), the question arises whether a government counsel has implied authority (there being no express authority) by such a consent to eliminate the defense of the statute of limitations. We are constrained to answer in the negative. The Supreme Court has held inapplicable to suits against the United States the well-established rule that a defendant, either expressly or by failure to assert it, may waive that defense. Finn v. United States, 123 U.S. 227, 8 S. Ct. 82, 31 L. Ed. 128; Munro v. United States, 303 U.S. 36, 41, 58 S. Ct. 421, 82 L. Ed. 633.*fn1 The rationale of those cases - that statutes by which the United States yields its immunity from suit must be literally and narrowly construed - has frequently, and recently, been reiterated.*fn2
Our own recent experience in a somewhat similar case, Hammond-Knowlton v. United States, 2 Cir., 121 F.2d 192, serves to warn us that the Supreme Court has no inclination to adopt a more generous attitude.*fn3 We there suggested that, although taxes notoriously induce grumbling, the reflective citizen pays then cheerfully enough, when they have been lawfully assessed, because he recognizes such exactions as part of the necessary cost of maintaining a social organization without which he could not exist, but that, when the government improperly collects a sum under the guise of a tax and its repayment is concededly a matter both of justice and legal right, then to block that repayment by a statutory construction of an unusually strict character is to provoke criticisms of our government that are neither desirable nor easy to answer. Our opinion in that case expressed our distaste for the basic doctrine that a citizen of the United States cannot assert a claim in any court against his government, without its permission, for acts on its part injurious to him and for which, if done by a private person, the courts would award damages. Referring to the history of the immunity of foreign sovereigns from suits to which they do not consent,*fn4 we agreed with the statement of Mr. Justice Wilson in Chisholm v. Georgia, 2 Dall. 419, 471, 472, 1 L. Ed. 440, that such an immunity is repugnant to the fundamental conception of a democracy,*fn5 and we said that we thought that a democratic government ought not to be able to maintain that it has the attributes and prerogatives of a king who "can do no wrong." [121 F.2d 205.] We said further that we felt that, certainly when once the United States has, by statute, given its consent to be sued, that consent should not, through refined distinctions, be so stingily interpreted as to bar a citizen's just claim.*fn6 We cited Supreme Court decisions, however, that precluded our deciding the case then before us in favor of the affected citizen, cases which we, as an inferior court, could not disregard. And the Supreme Court denied review of our decision.*fn7
Consequently we must here, once more, follow the niggardly rule and deny to a citizen a right to recover money which his government wrongfully obtained from him and which unjustly enriches it.*fn8
2. Since, for the reasons noted, we are obliged to hold that the consent of the government's counsel to the vacating order was inefficacious, that order cannot be supported unless it was authorized by Federal Rules of Civil Procedure, rule 60(b).*fn9 However, that rule (except as provided in its last sentence, which we shall discuss later) does not justify the entry of such an order, unless it be based upon a motion made within six months after the entry of the order which the motion seeks to have the court vacate; and here Wallace's motion of November 4, 1940, was made more than two years after the dismissal order.Wallace argues that Rule 6(b) permits the court, for cause shown, to extend that six months' period;*fn10 he urges that, as that Rule explicitly excepts from its scope only Rule 59 and the period for taking an appeal, it must apply to motions made pursuant to Rule 60(b). We cannot agree. Interpretative devices such as expressio unius exclusio alterius have diminished importance today; they must yield to more obvious indications of intention.*fn11 The terms of Rule 60(b) - "but in no case exceeding six months" - are so emphatic as to preclude the importation of an exception via Rule 6(b).We reach the same conclusion as to the effect of Rule 6(c).*fn12
3. The issue, then, narrows down to this: Was Wallace's motion of November 4, 1940 covered by the last sentence of Rule 60(b), i.e., was it "an action to relieve a party from" an "order"? We are in accord with the interpretation of that sentence in Professor Moore's admirably clear discussion in his Federal Practice, 3255-3276. Obviously it cannot have been intended that what may be done within six months, pursuant to the body of Rule 60(b), may also be done thereafter, under the exception contained in its last sentence. That exception, as Moore shows from its history, was designed to preserve proceedings which, before the promulgation of the new rules, could have been initiated after the expiration of the term, the new rules having abolished fixed terms. If, however, the word "action" in the exception refers only to such proceedings as, before the new rules, were independent suits, then the exception includes merely a proceeding to relieve from an order procured by "extrinsic" fraud. But we agree with Moore that the Rule's history indicates that "action" was intended also to cover whatever could have been done by a writ of error coram nobis or coram vobis, or a bill of review, or a bill in the nature of a bill of review, despite the fact that any such proceeding was, before the new rules, not an independent "action" but ancillary to the main suit.*fn13
The consequence of that interpretation is that pursuant to a motion made or action begun after six months, no relief can be granted under Rule 60(b) except that which would previously have been proper, after the expiration of the term, in proceedings by way of such ancillary writs or bills or in an independent suit to set aside an order for "extrinsic" fraud.*fn14 The kind of relief Wallace sought here could not, before the Rules, have been accorded him in such ancillary proceedings, and he made no charge of fraud.
The vacating order of February 4, 1941, was therefore wholly unauthorized; since it lacked validity, the trial court had nothing before it, and its judgment on the merits was erroneous.
AUGUSTUS N. HAND, Circuit Judge, concurs in the result.