On July 11, a closely divided Fourth Circuit issued an en banc decision in Aikens v. Ingram. (Apologies for the delay in posting. I was vacationing in the northwestern reaches of the Fourth Circuit’s jurisdiction when the decision came down.)
The ruling affirms the dismissal of a former military reservist’s claim for relief from a prior judgment under Rule 60(b)(6). This provision comes at the tail end of Rule 60(b), which sets forth various circumstances that justify relief from a final judgment. After five subsections identifying particular circumstances, (b)(6) authorizes relief from a final judgment “for any other reason that justifies relief.” The varying interpretations of this capaciously worded procedural provision provide insight into the state of the Fourth Circuit as President Obama’s appointees (Davis, Keenan, Diaz, and Wynn) continue to settle in. (Note: Judge Wynn did not participate in the decision.)
The en banc ruling largely tracks the panel opinion. Judge Niemeyer authored that opinion, joined by a senior Sixth Circuit judge sitting by designation. Judge King dissented.
The principal en banc opinions had the same authors in the same arrangement. Judge Niemeyer wrote for the majority, to affirm, joined by Traxler, Wilkinson, Shedd, Duncan, Agee, and Diaz. Judge King wrote the lead dissent,to vacate and remand, joined by Motz, Gregory, Davis, and Keenan. There were two additional opinions: a concurrence by Judge Diaz (joined by Shedd, Duncan, and Agee), and a solo dissent by Judge Davis.
The voting distribution reveals some crossover from what one might predict based solely on perceived ideology as measured by the appointing President. If Obama-appointed Judge Diaz had voted to vacate and remand instead of affirm, the court would have been split 6-6. (And if Judge Wynn had participated and also voted to vacate and remand, the outcome would have gone the other way.) As it is however, Judge Diaz voted to affirm. The substantive and tonal differences between Judge Diaz’s concurrence and Judge Davis’s dissent are notable.