[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_______ _________________ No. 16

- 12976 Non

- Argument Calendar

________________________ D.C. Docket No. 0:01

- cv - 07874

- DTKH

SECURITIES AND EXCHANGE COMMISSION , Plaintiff

- Appellee,

versus PAUL R. JOHNSON , Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida

________ ________________ ( March 27, 2017 ) Before MARCUS, WILSON , and FAY , Circuit Judges.
PER CURIAM:

Case: 16-12976 Date Filed: 03/27/2017 Page: 1 of 62 Paul R . Johnson appeals the denial of a 2015 motion to reduce a di sgorgement award in a 2007 judgment. 1 W e affirm the denial of Johnson’s motion, pursued under Rules 60(b)(4), (5) and 60(d)(1), Federal Rules of Civil Procedure.
I. We review de novo the denial of a Rule 60(b)(4) motion. Burke v. Smith , 252 F.3d 1260, 1263 (11th Cir. 2001)

. Under Rule 60(b)(4), a court can relieve a party from a void judgment , which is “ one so affected by a fundamental infirmity that the infirmity may be raised even af ter the judgment becomes final.

. . . A judgment is not void, for example, simply because it is or may have been

erroneous. Similarly, a motion u nder Rule 60(b)(4) is not a subs titute for a timely appeal. ” United Student Aid Funds, Inc. v. Espinosa , 559 U.S. 2 60, 270, 130 S. Ct. 1367, 1377 (2010) (citations omitted). Moving under Rule 60(b)(4), Johnson argues only that the disgorgement amount was based on an incorrect factual finding that the investor s affected by Johnson’s securities violations lost 100% of

1 In addition to arguing for a reduction of the disgorgement award, Johnson argues for an evidentiary hearing to investigate a violation by his former counsel of the district court’s “asset freeze order.” However, Johnson fails to explain why he needs to r e - open a case tha t the district court closed in 2007

— and that t he SEC filed against Johnson

— to assert claims against his former counsel. Case: 16-12976 Date Filed: 03/27/2017 Page: 2 of 63 their investments. 2 This argument, better suited for a direct appeal, fails to establish a “fundamental infirmity.” See id.
II. We review for abuse of discretion the den ial of a motion under any subsection of Rule 60(b) other than subsection (4). Burke , 252 F.3d at 1263. Thus we review for abuse of discretion the district court’s denial of Johnson’s motion under Rule 60(b)(5), which allows a court to relieve a party from a judgment whose prospective application is “no longer equitable.” T his languag e

— “no longer equitable”

— require s the movant to establish a change in circumstance

. See Horne v. Flores , 557 U.S. 433, 447, 129 S. Ct. 2579, 2593 (2009) (“ The party seekin g relief bears the burden of establishing that chang ed circumstances warrant relief

. . . .”). A lso , a Rule 60(b) motion “ must be made within a reasonable time .”
F ed

. R. C iv

. P. 60(c)(1). Johnson fails to explain , with a change in circumstance or other reason, the eight

- year delay after the 2007 judgment in moving under Rule 60(b) (5)

. Johnson’s only relevant retort is that in 2009 this circuit denied his mot ion to appeal in forma pauperis based on a determination that his appeal was frivolous

.

2 Johnson argues that he was “ deprived of due process” because the district court used “summary judgment to set an infl ated disgorgement amount that contravenes the estoppel of the criminal judgment.” In less convoluted terms, Johnson argues that he was “ deprived of due process” because of an inconsistent factual finding in parallel criminal and civil proceedings

. Such i nconsistency alone does not implicate due process. Johnson fails to identify a due process concern. Case: 16-12976 Date Filed: 03/27/2017 Page: 3 of 64 Se e SEC v. Johnson , No. 08

- 10473, slip o p. at 1 (11th Cir. Jan. 15, 2009) ; SEC v. Johnson , No. 0:01

- cv - 7874, Doc

. 358, slip op. at 1 (S.D. Fla. Feb. 25, 2008) (denying Johnson’s motion in district court to appeal in forma pauperis )

. The
correct method of seeking relief then would have been to pay the appellate docket fee or to move for reconsideration of the denial of his motion to appeal in forma pauperis . And Johnson fails to explain the six

- and

- a - half

- year delay in moving for Rule 60(b) relief after the district court’s and this circuit’s denials of motions to appeal in forma pauperis

. The district court did not abuse its discretion by denying Johnson’s Rule 60(b)(5) motion.
III.
We review for abuse of discretion the denial of a m otion under Rule 60(d) , which states in subsection (1) that Rule 60 “ does not limit a court ’ s power to

. . .

e ntertain an independent action to relieve a party from a judgment, order, or proceeding.” An “independent action” is “reserved for those cases of injustices which, in certain instances, are deemed sufficiently gross to demand a departure from rigid adherence to the doctrine of res judicata.” Aldana v. Del Monte Fresh Produce N.A., Inc. , 741 F.3d 1349, 1359 (11th Cir. 2014) (citing United States v. Beggerly , 524 U.S. 38, 46, 118 S. Ct. 1862, 1867 ( 1998)) ; see also Bankers Mortg. Co. v. United States , 423 F.2d 73, 81 n.7 (5th Cir. 1970) (“Where the adverse party

Case: 16-12976 Date Filed: 03/27/2017 Page: 4 of 65 is not prejudiced

. . . a 60(b) motion may be treated as the institution of an independent action.”). 3 In identifying a gross injustice , we review for the existence of these factors: (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the jud gment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any remedy at law. Aldana , 741 F.3d at 1359 (citations omitted). Moving under Rule 60(d), Johnson again argues that the disgorgement amount was based on an incorrect factual finding that the investors lost 100% of their investments. Disputing a district
court’s factual finding sat isfies none of the five factors that help establish a gross injustice . The remainder of Johnson’s arguments in support of his Rule 60(d) motion function s only to su pport his dispute of this factual finding . Each is an
argum ent better suited for a direct appeal; none establish a gross injustice to Johnson. The district court did not abuse its discretion by denying Johnson’ s Rule 60(d) motion.
IV.

3 See Bonner v. City of Prichard , 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that all decisions of the “old Fifth” Circuit handed down prior t o the close of business on September 30, 1981, are binding precedent in the Eleventh Circuit).

Case: 16-12976 Date Filed: 03/27/2017 Page: 5 of 66 Accordingly, w e affirm. See SEC v. J&J Management Consulting , No. 15

- 14628, slip o p. at 2 (11th Cir. Oct. 3, 2016) (affirming for a similar reason
the denial of a Rule 60(b) motion by Caterina Johnson, who is Paul Johnson’s

co - defendant and mother, and J&J Management C onsulting, which is Caterina Johnson’s company). AFFIRMED. Case: 16-12976 Date Filed: 03/27/2017 Page: 6 of 6