The opinion of the court was delivered by: Neal P. McCURN, Senior District Judge.
MEMORANDUM-DECISION AND ORDER
To understand the narrow scope of the current Fed.R.Civ.P. 60(b) motions for relief from judgment, there is no need to recite the entire long and sometimes convoluted history of this more than 30 year old action. Instead the court will discuss only the recent history that is directly relevant to the pending motions.
On August 26, 2002, the court issued a memorandum-decision and order in this action. See Declaration of William W. Taylor, III in Support of Plaintiffs' Cross-Motion for Relief from August 29th Judgment (Oct. 17, 2002) ("Taylor Decl'n"), exh. 3 thereto. A few days later, on August 29, 2002, the court issued an "Amended Memorandum & Decision & Order[.]" Oneida Indian Nation of New York v. County of Oneida, New York, 217 F. Supp.2d 292 (N.D.N.Y. 2002) ("Oneida VI"). That same day the Clerk of the Court entered judgment in accordance therewith. See Taylor Decl'n, exh. 1 thereto. On September 27, 2002, the Oneida*fn1 filed with the Second Circuit a Notice of Appeal from that judgment. The Counties did the same on October 9, 2002. Following the timely filing of those Notices of Appeal, on October 15, 2002, the Counties filed a Rule 60(b)(1) motion to amend the judgment. Three days later, on October 18, 2002, the Oneida filed a Rule 60(b)(6) cross-motion to amend the judgment, but for different reasons than those which the Counties are urging.
The earlier filing of the Notices of Appeal would "normally `divest the district court of [jurisdiction] over those aspects of the case involved in the appeal[.]'" See United States v. Camacho, 302 F.3d 35, 36 (2d Cir. 2002) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402 (1982)). The Second Circuit "allows a district court either to `entertain and deny the rule 60(b) motion' without the circuit court's permission, or `grant a rule 60(b) motion after an appeal is taken . . . if the moving party obtains permission from the circuit court[,]'" however. King v. First American Investigations, Inc., 287 F.3d 91, 94 (2d Cir.), cert. denied, 123 S.Ct. 393, 154 L.Ed.2d 314 (2002) (quoting Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992)) (emphasis omitted). Indeed, this court followed precisely the latter procedure in Thompson v. County of Franklin, 180 F.R.D. 216 (N.D.N.Y. 1998) (although defendant was entitled to relief from judgment based upon newly discovered evidence, court could not grant such relief while appeal pending until Second Circuit consented and remanded, thereby returning jurisdiction to the district court). The rationale for this procedure is fairly self-evident: denying a motion to amend a judgment does not affect the appeal of that judgment by threatening to duplicate appellate proceedings. See Boyko v. Anderson, 185 F.3d 672, 675 (7th Cir. 1999) (Posner, C.J.). On the other hand, a district court's grant of a motion to amend a judgment on appeal has potentially far reaching implications for that appeal, and could easily interfere with ongoing appellate procedures.
Recognizing the potential jurisdictional barrier to these motions, the parties submitted a proposed order, which this court executed on November 14, 2002. In that order the court explicitly acknowledged that under the circumstances it does not have jurisdiction to amend the August 29, 2002 judgment, as the parties are requesting in their respective Rule 60(b) motions. See Order (Nov. 14, 2002) at 1-2, ¶ 2 (Doc. #98). Nonetheless, the court agreed to entertain these motions and resolve them in a manner consistent with the Second Circuit's stated practice as outlined above. Thus, despite the parties filing of Notices of Appeal with the Second Circuit, the court is now free to examine the merits of these motions.
II. Counties' Motion for Relief from Judgment
In October 1981, United States District Court Judge Edmund Port found in favor of the Oneida "and against the . . . County of Madison in the sum of $9,060 with interest at six percent per annum from January 1, 1968[.]" Affidavit of G. Robert Witmer, J. in Support of Motion for Relief from Judgment (Oct. 10, 2002) ("Witmer Aff."), exh. A thereto (Oct. 5, 1981 transcript of Judge Port's bench decision) at 174a. That sum represented the fair rental value for two years for "that portion of the subject property located in Madison County and used as highway during 1968 and 1969, . . . [and] for Madison County's unlawful occupancy of the [Champlain Battleground] Park and radio tower lands." Id. at 172a and 173a. Judge Port further found in favor of the Oneida and "against the . . . County of Oneida in . . . the sum of $7634 with interest at six percent per annum from January 1, 1968." Id. at 174a. That sum represented the $6,534.00 rental value for the subject property located in the County and used as highways during 1968 and 1969, as well as $1,100.00 for Oneida County's unlawful occupancy of a gravel pit. See id. at 172a and 173a. In making the award of highway damages for both Counties, as the Second Circuit explained it, "Judge Port . . . analogized the Oneidas' claim to a request for `just compensation' for a road easement condemnation, and calculated the fair rental of 90% of the value of the property." Oneida Indian Nation of New York v. Oneida County, 719 F.2d 525, 542 (2d Cir. 1983) ("Oneida IV"), aff'd in part, rev'd in part on other grounds, Oneida County v. Oneida Indian Nation of New York, 470 U.S. 226, 105 S.Ct. 1245 ("Oneida V"). The Second Circuit held that the 10 per cent discount to the value of the highway lands was not appropriate. Id.
Eventually the present action came before this court on remand from the Circuit Court to resolve the issue of whether the defendant Counties occupied the subject property in good faith, thus entitling them to a set-off for improvements to that property. Finding that the Counties did satisfy that good faith requirement, this court found that the Counties "were entitled to a set-off for improvements[.]" See Oneida VI, 217 F. Supp. at 310. Then, although the court intended to award damages in the same amounts as these adopted by Judge Port, and also taking into account the Oneida IV court's holding that there should be no discount for highway lands, instead it inadvertently miscalculated those damages. See id. and Witmer Aff., exh. B thereto at 33. Not only did the court double count the highway lands, but in determining the value of those lands, it miscalculated the same by including therein the rental value of other, non-highway lands such as the park, radio tower, and gravel pit. As a result, the Counties are now seeking to have this court amend its August 29, 2002 judgment to reflect damages consistent with Judge Port's decision and the Second Circuit's decision in Oneida IV.
Obviously calculation of prejudgment interest magnified this court's initial miscalculations of the damage awards. Thus, the Counties are also seeking recalculation of the prejudgment interest, but they do not offer a method by which to accomplish that. See Witmer Aff. at 4, ¶ 8. Presumably they simply want the court to recalculate the prejudgment interest based on the changed damage figures.
Pursuant to Fed.R.Civ.P. 60(b)(1), which states in relevant part that "[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, . . . for . . . "[mistake, inadvertence, surprise, or excusable neglect[,]" Fed.R.Civ.P. 60(b) (emphasis added), the Counties are seeking to amend the August 29, 2002 judgment as follows.*fn2 First of all, Oneida County claims that the total award as against it should be $8,360.00 representing $7,260.00 for highway lands*fn3 and $1,100.00 for gravel pit lands. See Witmer Aff. at 3, ¶ 8. Then as to Madison County, purportedly the total award against it should be $9,910.00, comprised of $8,500.00 for highway lands*fn4 and $1,410.00 for park and radio tower lands. See id.
The Counties' argument for amending the August 29, 2002 judgment to reflect the damage awards as set forth above need not detain the court for long because there is no doubt that the court inadvertently miscalculated the damages. Furthermore, the Oneida are not opposing this motion in any respect. See Plaintiffs' Memorandum of Law in Support of Cross-Motion for Relief from August 29th Judgment and in Response to Defendants' Motion for Relief from Judgment ("Pl. Memo.") at 2. Because this motion was brought within one year of the entry of judgment, as Rule 60(b) requires, the Oneida are not challenging the timeliness of same. Nor, understandably, are they challenging the Counties' reliance upon subsection (1) of Rule 60(b). See O'Tell v. New York, N.Y. & H.R.R., 236 F.2d 472, 474-75 (2d Cir. 1956) (affirming correction of judgment so that settlement monies paid earlier to plaintiff would not be deducted from jury's damage award); and United States v. Wissahickon Tool Works, Inc., 200 F.2d 936, 940-41 (2d Cir. 1952) (Rule 60(b) can be used to add amounts erroneously left out of judgment). Cf. Ivor B. Clark Co. v. Hogan, 296 F. Supp. 407, 410 (S.D.N.Y. 1969) (correcting "inadvertent judicial error" where district court failed to determine exact amount of mortgagees' obligation to judgment creditor).
Indeed, in the Oneida's supporting memorandum, it clearly states that they "agree that the error in computing damages should be corrected, even though it requires modifying amounts expressed as factual findings in the August 29th opinion." Pl. Memo. at 12. Accordingly, mindful of its limited role due to the previous filing of notices of appeal with the Second Circuit, the court is inclined to grant the Counties' Rule 60(b)(1) motion in all respects.
III. Plaintiffs' Cross-Motion for Relief from Judgment
Just a few days after judgment was entered in accordance with the court's October, 1981 decision, in a letter to Judge Port the Counties raised the possibility of a "slight error" as to the calculation of prejudgment interest. See Taylor Decl'n, exh. 7 thereto. Evidently assuming the existence of a yearly lease agreement — a highly doubtful proposition — the Counties urged Judge Port to use as the accrual date December 31, 1968, the last day of the first year for which the Oneida are seeking damages. He declined, instead calculating prejudgment interest commencing from January 1, 1968, the first day of the two year period covered by this lawsuit. See id., exh. 4 thereto at 37 and 38; exh. 5 thereto at 2, ¶ 2; and exh. 6 thereto.
Even though at that time the Oneida had an opportunity to respond to the Counties' argument regarding the proposed change in the accrual date, they did not. See id., exh. 8 thereto. Judge Port did respond though, writing to all parties that he "intended the interest to commence running from the beginning of the period covered by the suit." See id. Reiterating his reasons for using the January 1, 1968 accrual date, Judge Port wrote that he had "adopted New York Statutory Law on the question of interest against the counties as it would apply in a condemnation suit for the taking of an easement." Id. He further explained that in that situation "interest would begin to run on the date of the taking[.]" Id. Then, restating his prior conclusion, Judge Port declared that the accrual date for prejudgment interest would run from "the beginning of the period for which suit was brought[,]" i.e. January 1, 1968. Id.
For purposes of these motions, the other significant aspect of Judge Port's decision is the applicable rate of interest. In awarding prejudgment interest, Judge Port referred to section 3-a(2) of New York's General Municipal Law. Taylor Decl'n., exh. 4 thereto at 38. Section 3-a sets the "rate of interest on judgments and accrued claims against municipal corporations[;]" and subsection (2) provides in relevant part that the rate "arising out of condemnation proceedings . . . shall not exceed six per centum per annum." NEW YORK GEN. MUN. LAW § 3-a(2) (McKinney 1999). Recognizing that "technically [this] is not a condemnation suit[,]" nonetheless given that there had been references during the hearing to the rule of damages in condemnation proceedings he held "that the rate of interest to be applied in [such] suits provide[s] the best guide under the facts of this particular case." Taylor Decl'n, exh. 4 thereto at 38. Judge Port gave the following rationale for applying that particular interest rate. "The damages here parallel the measure of damages for acquiring temporary easement for road purposes or other purposes[,]" [and] [p]ossession by the municipalities was acquired without the consent of the rightful owner and adapting New York law of [i]nterest as it relates to claims and [j]udgments against counties, . . . it is appropriate to fix interest at six percent per annum." Id. at 38-39.
As noted in Oneida VI, "[i]n 1983, the Second Circuit affirmed [Judge Port] on the issue of liability `but remanded for further proceedings on the calculation of damages.'" Oneida VI, 271 F. Supp.2d at 294-95 (quoting Oneida IV, 719 F.2d at 527). Before that remand, however, this test case came before the Supreme Court for a second time, and the Court affirmed the Counties' liability, but "remanded to the Court of Appeals for further proceedings consistent with [the Supreme Court's] decision." Oneida V, 470 U.S. at 254, 105 S.Ct. at 1262. Eventually, the present case was reassigned to this court to decide the remand issues.
When the prejudgment interest issue finally came before this court, the Oneida mistakenly indicated that the six percent interest rate employed by Judge Port was predicated upon N.Y. C.P.L.R. § 5004, setting forth the rate of prejudgment interest generally. As the Oneida accurately pointed out, effective June 25, 1981, that statutory rate was increased to nine percent per year. See Taylor Decl'n., exh. 3 thereto at 33, n. 11. Due to that statutory rate change, and relying upon Judge Port's accrual date, the Oneida concluded that "prejudgment interest . . . should be calculated at a rate of 6% per annum from January 1, 1968 through December 31, 1981, and at a rate of 9% per annum for each year thereafter." Id., exh. 13 thereto (emphasis added) (Plaintiffs' Memorandum on the Good Faith Issue at 29, n. 18). Initially this court adopted wholesale the Oneida's position both as to the prejudgment interest accrual date and the rate of same. See id., exh. 3 thereto at 33, n. 11.
A few days later, on August 29, 2002, this court issued Oneida VI wherein it disagreed with the Oneida's proposed accrual date, but continued to agree with the Oneida as to the applicable interest rates. See Oneida VI, 217 F. Supp.2d at 310, n. 11. Rather than adopting a January 1, 1968 accrual date as did Judge Port, this court held that prejudgment interest begins to run from the time of the filing of the complaint — in this case, February 5, 1970. See id. (citing Cyberchon Corp. v. Calldate Systems Development, Inc., 47 F.3d 39, 43 (2d Cir. 1995); and Conway v. Icahn & Co., Inc., 16 F.3d 504 (2d Cir. 1994)). That same day the Clerk of the Court entered judgment in accordance with Oneida VI. See Taylor Decl'n, exh. 1 thereto.
Continuing to agree with Judge Port's January 1, 1968 accrual date, the Oneida filed the present cross-motion challenging this court's use of February 5, 1970 as the prejudgment interest accrual date. Apparently after more closely examining Judge Port's decision, however, the Oneida are also challenging use of section 5004 of the C.P.L.R. as the basis for the prejudgment interest rate. Instead, as previously discussed, the Oneida note that Judge Port actually relied upon section 3-a(2) of the General Municipal Law, and so too should this court.
This cross-motion is not so easily resolved as was the Counties' motion to amend. Unlike the Oneida, who are not opposing the Counties' motion, the Counties are vigorously opposing the Oneida's motion. Furthermore, in contrast to the Counties' motion, as will seen, there is a procedural hurdle to this cross-motion that was not present in the Counties' motion. What is more, the issues which this cross-motion raises are more complex than simply correcting an inadvertent mathematical error.
The Oneida maintain that pursuant to Fed.R.Civ.P. 60(b)(6), they are entitled to relief from the court's August 29, 2002 judgment based upon the law of the case doctrine. From the Oneida's standpoint, that doctrine precludes this court from deviating from the January 1, 1968, accrual date adopted by Judge Port. Relying upon what has become known as the mandate rule, a subsidiary of the law of the case doctrine, the Oneida strongly urge that this court "exceeded the scope of its jurisdiction" by changing the accrual date. See Pl. Memo. at 2. Second, they are taking the position that this court should adhere to Judge Port's prior decision with respect to the accrual date because none of the recognized exceptions to that doctrine apply. Lastly, the Oneida assert that it was "clear error" for this court to change the accrual date after remand, and thus "correction of the judgment now is in the interests of justice." Id. at 12.
As to the mandate rule, the Counties retort that because the Second Circuit never reviewed the prejudgment interest issue, let alone the accrual date issue, the Oneida's reliance upon that rule is "inapposite[.]" Defendants' Memorandum of Law in Response to Plaintiffs' Cross-Motion for Relief from the August 29 Judgment and in Reply to Plaintiffs' Response to Defendants' Motion for Relief from Judgment ("Def. Resp.") at 5. The primary thrust of the Counties' response is that it was within this court's "broad discretion" to change the accrual date. See id. at 6. Furthermore, relying upon the settled rule that an intervening change in controlling law permits a court to deviate from the law of the case doctrine, the Counties reply that in altering the accrual date this court properly exercised its discretion because there was such a change in law. More specifically, the Counties believe ...