Samantha J. Comfort, Etc. v. Lynn School Committee

United States Court of Appeals
For the First Circuit
No. 08-1735
SAMANTHA J. COMFORT, ETC., ET AL.,
Plaintiffs, Appellants,
v.
LYNN SCHOOL COMMITTEE ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Chester Darling, with whom Michael Williams, Robert J.
Roughsedge, and Citizens for the Preservation of Constitutional
Rights,Inc. were on brief, for appellants.
Maura T. Healey, Assistant Attorney General, with whom Martha
Coakley, Attorney General, Jeffrey D. Clements and Adam J.
Hollingsworth, Assistant Attorneys General, and John C. Mihos, City
Solicitor, were on consolidated brief, for appellees.
March 12, 2009

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The details of the Policy are set out at length in several 1
earlier opinions, see, e.g., Comfort III, 418 F.3d at 7-9; Comfort
I, 283 F. Supp. 2d at 347-48, and we refer the curious reader to
those opinions.
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SELYA, Circuit Judge. We are called upon today to
revisit a case that we thought had gone to its eternal rest. The
tale follows.
Nearly six years ago the district court entered judgment
for the defendants in a civil action seeking to strike down, on
constitutional grounds, a school transfer/student assignment policy
(the Policy) that explicitly considers race as a determining factor
in student placement. Comfort v. Lynn Sch. Comm. (Comfort I), 283
F. Supp. 2d 328, 386-87 (D. Mass. 2003). This court, sitting en
banc, upheld that judgment (and, thus, upheld the Policy) by a one-
vote margin. Comfort v. Lynn Sch. Comm. (Comfort III), 418 F.3d 1
(1st Cir. 2005) (en banc). The Supreme Court denied the 1
plaintiffs' ensuing petition for a writ of certiorari, 546 U.S.
1061 (2005), and the judgment became final. That apparently ended
the matter.
But appearances can be deceiving, see Aesop, The Wolf in
Sheep's Clothing (circa 550 B.C.), and that axiom proved to be
applicable here. Following the Supreme Court's decision in a
different case, see Parents Involved in Cmty. Sch. v. Seattle Sch.
Dist. No. 1, 127 S. Ct. 2738 (2007), the Comfort plaintiffs invoked
Federal Rule of Civil Procedure 60(b)(5) and asked the district

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court for relief from the final judgment. The court denied that
motion. Comfort v. Lynn Sch. Comm. (Comfort IV), 541 F. Supp. 2d
429, 433 (D. Mass. 2008). The plaintiffs now appeal. We affirm.
We briefly chronicle the events leading up to this
appeal. The underlying litigation began in 1999, when the Comfort
family and other similarly situated families sued the Lynn School
Committee and a number of allied defendants for, among other
things, an injunction to end further use of the Policy (which
articulated one aspect of the City of Lynn's method of effecting
student placements in the public schools). The plaintiffs alleged
that the Policy was discriminatory because it explicitly relied on
race as a criterion for student placement.
After extensive proceedings, the district court upheld
the Policy and entered judgment for the defendants. Comfort I, 283
F. Supp. 2d at 400. On appeal, a panel of this court disagreed; it
declared the Policy unconstitutional and reversed the judgment.
Comfort v. Lynn Sch. Comm. (Comfort II), No. 03-2415, 2004 WL
2348505 (1st Cir. Oct. 20, 2004). The defendants moved
successfully for rehearing en banc, and the en banc court withdrew
the panel opinion. See Comfort v. Lynn Sch. Comm., No. 03-2415
(Nov. 24, 2004) (unpublished order). After further briefing and
oral argument, a divided en banc court reinstated the original
district court judgment. Comfort III, 418 F.3d at 23.

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Even though the Supreme Court denied the plaintiffs'
petition for certiorari, 546 U.S. 1061 (2005), the Court later
granted certiorari in Parents Involved, 547 U.S. 1177 (2006). The
Court decided that case adversely to the respondent school
district, striking down a school transfer/student assignment policy
that bore a distinct resemblance to the Policy. See Parents
Involved, 127 S. Ct. at 2768. In the process, the Court
significantly restricted a school district's ability to assign
students based on racial factors. Id. at 2787-88. The Court
mentioned the Comfort case several times, including a flat
statement that the decision in Comfort III was "inimical to the
Constitution." Id. at 2774 (Thomas, J., concurring).
Buoyed by the holding, rationale, and language of Parents
Involved, the Comfort plaintiffs moved for relief from judgment in
the district court. They maintained that Parents Involved had
uprooted the legal foundation on which the decision in Comfort III
rested and that, therefore, allowing the judgment to stand would be
grossly inequitable. The district court denied the motion. See
Comfort IV, 541 F. Supp. 2d at 433. This timely appeal followed.
In the ordinary course, we review an order granting or
denying relief from judgment under Rule 60(b) for abuse of
discretion. See, e.g., Honneus v. Donovan, 691 F.2d 1, 2 (1st Cir.
1982). The standard is different, however, when an appeal is
premised on an abstract question of law, such as a question about

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the meaning or interpretation of the rule itself. In that event,
the appealed ruling engenders de novo review. See Harvey v.
Johanns, 494 F.3d 237, 240 (1st Cir. 2007). So it is here.
In order to put this appeal into perspective, we begin
with a few comments about finality. We then turn to the
plaintiffs' motion.
Courts long have recognized that finality is fundamental
to our judicial system. See, e.g., Guerrero-Santana v. Gonzales,
499 F.3d 90, 92 (1st Cir. 2007); United States v. Boch Olds., Inc.,
909 F.2d 657, 660 (1st Cir. 1990). Once litigation has run its
course and all available avenues of appeal have been exhausted, the
parties must be able to depend upon the certainty and stability of
the resultant judgment. See United States v. Rodríguez, 527 F.3d
221, 225 (1st Cir. 2008); Boch Olds., 909 F.2d at 660.
The importance of finality extends beyond the
expectations of the parties involved in a particular case.
Finality is an "institutional value[] that transcend[s] the
litigants' parochial interests." Oakes v. United States, 400 F.3d
92, 97 (1st Cir. 2005). This institutional interest dictates that
the principle of finality should hold sway even when newly emergent
decisions materially alter the legal landscape. See James B. Beam
Distilling Co. v. Georgia, 501 U.S. 529, 541 (1991) (explicating
the principle that changes in decisional law "cannot reopen the
door already closed"). This framework is in place because, in all

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but the most exceptional circumstances, "the great desirability of
preserving the principle of finality of judgments preponderates
heavily over any claim of injustice." United States ex rel.
Garibaldi v. Orleans Parish Sch. Bd., 397 F.3d 334, 340 (5th Cir.
2005).
In fine, claims once tried, decided on the merits,
appealed, and closed should — with only a few exceptions — "be
considered forever settled as between the parties." Feder'd Dep't
Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981) (citation and
internal quotation marks omitted). This imperative would consist
of nothing more than empty rhetoric were courts compelled to re-
litigate past cases whenever they glimpsed a material change in
decisional law. It follows, therefore, that a case cannot be re-
opened simply because some new development makes it appear, in
retrospect, that a judgment on the merits long since settled was
brought about by judicial error. See, e.g., Trenkler v. United
States, 536 F.3d 85, 100 (1st Cir. 2008), cert. denied, No. 08-
7947, 2009 WL 425419 (U.S. Feb. 23, 2009); Rodríguez, 527 F.3d at
225; see also Hoult v. Hoult, 57 F.3d 1, 5 (1st Cir. 1995)
(explaining that a wrongly decided point of law, without more, is
not a ground for relief from a judgment that has become final and
unappealable).
None of this is to say that the principle of finality is
immutable. Despite the high premium that the judicial system

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places on finality, there are some rare circumstances under which
a party may be relieved from a final judgment. Rule 60(b)
addresses this point (even though it may not exclusively encompass
it). The rule has six sub-parts, but only the fifth is implicated
here.
Under that sub-part, a court may grant relief from a
final judgment when:
[T]he judgment has been satisfied, released or
discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying
it prospectively is no longer equitable.
Fed. R. Civ. P. 60(b)(5). Like each of the other sub-parts of Rule
60(b), this fifth sub-part should be carefully parsed and construed
with circumspection. See Cotto v. United States, 993 F.2d 274,
277-78 (1st Cir. 1993).
Giving effect to its easily discernable structure and
plain language, Rule 60(b)(5) describes three sets of circumstances
in which relief from a final judgment may be justified. The first
category is obviously inapposite here; the plaintiffs have not
argued that the judgment in Comfort III has been satisfied,
released, or discharged. Rather, they assert that this case falls
within either the second or third set of circumstances.
Insofar as the second set of circumstances is concerned,
the plaintiffs strive to convince us that the prior judgment upon
which the district court's order rested has been reversed. We are
not persuaded.

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The provision from which this argument derives requires
a direct connection between the prior judgment and the supposedly
reversing judgment. The mere emergence of controlling precedent in
some other case that shows the incorrectness of the prior judgment
is not sufficient. See Lubben v. Selective Serv. Sys. Local Bd.
27, 453 F.2d 645, 650 (1st Cir. 1972).
Lubben illustrates this point. There, we upheld the
denial of a motion for relief from judgment even though the
decisional law on which the court had relied in entering the
judgment was later discredited. Id. We stated unequivocally that,
in order to come within Rule 60(b)(5)'s second category, the prior
judgment must be directly related to the purportedly reversing
decision by, for example, giving rise to the cause of action or
being part of the same proceeding. See id. In the absence of such
a direct connection, "a change in applicable law does not provide
sufficient basis for relief." Id. This interpretation of Rule
60(b)(5) is fully consistent with the authorities elsewhere. See,
e.g., Picco v. Global Marine Drilling Co., 900 F.2d 846, 851 (5th
Cir. 1990); Harris v. Martin, 834 F.2d 361, 365 (3d Cir. 1987).
The case at hand simply does not fit this mold. The
opinion in Parents Involved, though squarely on point, was rendered
in a completely separate case. No direct connection exists.
Little daunted, the plaintiffs try a variation on the
same theme. They say that the opinion in Parents Involved

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"virtually overruled" this court's en banc decision in Comfort III
and, therefore, the panel decision in Comfort II is now effectively
reinstated. This "virtual reversal" argument comprises more cry
than wool.
The most patent flaw in this argument is that it ignores
an abecedarian principle: that the Supreme Court decides only the
case before it. See Hein v. Freedom from Religion Found., Inc.,
127 S. Ct. 2553, 2572 (2007). While Parents Involved and Comfort
III both involve the same central issue, the two cases are not
connected either procedurally or structurally. Thus, Comfort III
was not before the Supreme Court and, a fortiori, the decision in
Comfort III was not reversed.
This reality undermines the "virtual reversal" scenario
and puts an end to the plaintiffs' quest for relief under the
second branch of Rule 60(b)(5). See Lubben, 453 F.2d at 650. The
withdrawn panel opinion was not, by some mysterious alchemy,
reinstated.
The plaintiffs' fallback position involves the third set
of circumstances limned in Rule 60(b)(5). Because that provision
paves the way for the granting of relief from a final judgment on
a purely equitable basis, changes in precedent have a more
pronounced relevance thereunder. See Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367, 383 (1992). The problem for the
plaintiffs, however, is that by its terms the provision applies

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only to judgments having prospective application. Fed. R. Civ. P.
60(b)(5).
The plaintiffs assert that the prior judgment here
satisfies this requirement because it has a continuing effect on
the school assignments of the minor plaintiffs. That assertion
misreads the language of the rule and confuses prospective
application with the res judicata effect that attaches to almost
every final judgment. See, e.g., Allen v. McCurry, 449 U.S. 90, 94
(1980) (stating that, under federal law, "a final judgment on the
merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that
action"); Kale v. Combined Ins. Co., 924 F.2d 1161, 1164 (1st Cir.
1991) (similar).
We have understood the class of judgments having
prospective application (sometimes referred to as "prospective
force") to be restricted to forward-looking judgments, such as
injunctions and consent decrees. See, e.g., Harvey, 494 F.3d at
241. Even then, we have limited the provision's application to
injunctions and consent decrees that involve "long-term supervision
of changing conduct or conditions." Paul Revere Variable Annuity
Ins. Co. v. Zang, 248 F.3d 1, 7 (1st Cir. 2001) (noting that this
provision is primarily concerned with "institutional reform
litigation" and similar matters).

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This narrow interpretation of prospective force makes
eminent sense. When a long-term injunction or consent decree is in
play, there is good reason to weigh the interests of finality and
equity differently; such measures, by their very nature, envision
the regulation of future conduct. See Rufo, 502 U.S. at 380-81.
The prior judgment in this case is not of that genre. It
is not executory, nor does it leave open for future adjudication
any issues regarding the rights of the parties. Clearly, then, the
prior judgment does not have prospective application as that term
has been defined in this context. See Paul Revere, 248 F.3d at 7;
DeWeerth v. Baldinger, 38 F.3d 1266, 1276 (2d Cir. 1994); Twelve
John Does v. Dist. of Columbia, 841 F.2d 1133, 1138 (D.C. Cir.
1988).
The plaintiffs offer a weak rejoinder: they say that the
prior judgment constrains them to suffer under the strictness of
the Policy (now known to be unconstitutional) and that, therefore,
the judgment has prospective force. But that is merely an
embellished way of saying that the prior judgment has res judicata
effect. That is not enough: that a party may be precluded from re-
litigating a matter because of claim preclusion principles is not
sufficient to imbue a prior judgment with prospective force. See
DeWeerth, 38 F.3d at 1276; Bailey v. Ryan Stevedoring Co., 894 F.2d
157, 160 (5th Cir. 1990); Twelve John Does, 841 F.2d at 1139.

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It is puzzling why the motion was filed in the first place. 2
The plaintiffs have acknowledged an awareness that the Policy is
vulnerable to attack in a new suit brought by new complainants.
That would seem to be an easy way to prevent what the plaintiffs
repeatedly characterize as a miscarriage of justice. With that
option open but unutilized, the plaintiffs' claims of inequity ring
hollow.
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Let us be perfectly clear. There is more to consider
under the third branch of Rule 60(b)(5) than whether a prior
judgment has prospective force. See United States v. Kayser-Roth
Corp., 272 F.3d 89, 95-96 (1st Cir. 2001). Here, however, we need
not undertake a further examination because a showing of
prospective force is a sine qua non for obtaining relief from
judgment under the third set of circumstances limned in Rule
60(b)(5). See id.; Bailey, 894 F.2d at 160. Because the
plaintiffs cannot satisfy this threshold requirement, a more
comprehensive appraisal would serve no useful purpose.
We need go no further. The short of it is that this case
does not come within any of the three exceptions envisioned by Rule
60(b)(5). Thus, the plaintiffs are not entitled to relief under
the rule, and the district court did not err in denying their
motion.2
Affirmed.

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