# Polites v. United States/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brennan
United States Supreme Court
364 U.S. 426
Polites v. United States
Argued: Aug. 18, 1960. --- Decided: Nov 21, 1960
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS join, dissenting.
In my view, the District Court should have exercised its discretion under Fed.Rules Civ.Proc. 60(b) to determine whether it is any longer equitable that this judgment of denaturalization should have prospective application. The Court's opinion, although it refers to Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207, as 'relevant and persuasive,' expresses no definite view on the availability of Rule 60(b) in this situation, but instead decides on the merits that the state of the law is substantially unchanged since the entry of the denaturalization decree. I would confirm the power of the District Court to act under Rule 60(b), but remand the cause to that court so that it may, in the first instance, decide what effect the Nowak and Maisenberg decisions have on petitioner's case.
First, it is necessary to point out that Ackermann is not in point. For one thing, relief there was sought only under subdivisions (1) and (6) of Rule 60(b), not, as here, under subdivision (5) as well. But more fundamentally, Ackermann was a case in which petitioners could have secured a reversal of their denaturalization simply by appealing. Since they deliberately chose not to appeal, this Court held Rule 60(b) unavailable. Here also petitioner chose not to appeal, but only because of the hopelessness of any chance of success. The Court of Appeals had affirmed judgments in three companion cases, and this Court had denied certiorari. True, denial of certiorari has no legal significance, and petitioner might have doggedly pursued his appellate remedies to the end. But as a practical matter such a course of action would have been futile. So petitioner's case must be considered not as one in which he could have appealed successfully, but as one in which he in fact did appeal unsuccessfully.
In that situation, it was the law long before the promulgation of Rule 60(b) that a change in the law after the rendition of a decree was grounds for modification or dissolution of that decree insofar as it might affect future conduct. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 431 432, 15 L.Ed. 435. This principle is rooted in the practice of courts of equity and is well settled in the vast majority of the States. See 7 Moore, Federal Practice (2d ed. 1955), 60.26(4); Ladner v. Siegel, 298 Pa. 487, 148 A. 699, 68 A.L.R. 1172. Perhaps before the merger of law and equity in 1938 a denaturalization proceeding was an 'action at law.' But a decree of denaturalization is a determination of status which has prospective effect, and there is no reason why in modern times it should not be governed by equitable principles.
The decisions under Rule 60(b)(5) (adopted by the 1948 amendments as to the Federal Rules of Civil Procedure) continue this history of equitable adjustment to changing conditions of fact and law. McGrath v. Potash, 91 U.S.App.D.C. 94, 199 F.2d 166, a case decided under subdivision (6), but to which subdivision (5), by the respondent's admission, was equally applicable, is directly in point. There several aliens obtained a decree from a District Court enjoining the Attorney General from proceeding to deport them without complying with the hearing requirements of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. Pending appeal by the Government, this Court held in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, that the Administrative Procedure Act did indeed apply to deportation proceedings. Seeing that further resistance would be futile, the Attorney General dismissed his own appeal by agreement. Shortly thereafter Congress overruled the Wong Yang Sung decision and expressly declared that proceedings relative to the exclusion or expulsion of aliens should not be subject to the Administrative Procedure Act. 64 Stat. 1048. The Government then moved under Rule 60(b) for a dissolution of the injunction against it, relying on this change in law, and the motion was granted. The United States in this case seeks to distinguish that decision by asserting that here 'the continuing force of the decree derives from facts fully accrued and litigated in the original judgment.' True enough; but here, as in McGrath, although the facts were fully accrued at the time of the decree and have not changed, the law has (so petitioner asserts) radically changed, and in that situation it is unjust to give the judgment prospective effect.
The cases under Rule 60(b)(5) relied on by the United States are readily distinguishable. In Title v. United States, 9 Cir., 263 F.2d 28, certiorari denied 359 U.S. 989, 79 S.Ct. 1118, 3 L.Ed.2d 978; Elgin Nat'l Watch Co. v. Barrett, 5 Cir., 213 F.2d 776, and Berryhill v. United States, 6 Cir., 199 F.2d 217, it was entirely possible that the remedy by appeal would have been successfully invoked. And in Collins v. City of Wichita, 10 Cir., 254 F.2d 837, a modification of the judgment would have retroactively disturbed existing rights and financial reliance on the judgment. In Scotten v. Littlefield, 235 U.S. 407, 35 S.Ct. 125, 59 L.Ed. 289, relief was denied in a situation virtually identical to this case. But the point actually decided there was that a bill of review would not lie, and it is universally conceded that Rule 60(b) is not limited to those situations where the old confusing collateral remedies would have been available.
In sum, the District Court need 'not abdicate its power to revoke or modify its mandate, if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.' United States v. Swift & Co., 286 U.S. 106, 114-115, 52 S.Ct. 460, 462, 76 L.Ed. 999. It is revolting that petitioner should be subject to deportation because of a decree which he could not successfully have attacked on appeal and which subsequent events may have rendered erroneous. The principle of finality is not offended by modification which disturbs no accrued rights and concerns only future conduct.
Accordingly, I would reverse the judgment of the Court of Appeals and remand this case to the District Court with directions to exercise its discretion under Rule 60(b)(5).

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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