United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 2016 Decided November 1, 2016

No. 15-5210

UNITED STATES OF AMERICA,

UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,

APPELLEES

v.

PHILIP MORRIS USA INC.,

FORMERLY KNOWN AS PHILIP MORRIS INCORPORATED,

APPELLEE

R.J. REYNOLDS TOBACCO COMPANY,

APPELLANT

BROWN & WILLIAMSON TOBACCO CORPORATION,

DIRECTLY AND AS SUCCESSOR BY MERGER TO AMERICAN 

TOBACCO COMPANY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:99-cv-02496)
2

Jeffrey A. Mandell argued the cause for appellant. With 

him on the briefs were Noel Francisco and Peter J. 

Biersteker. David M. Bernick entered an appearance.

Lewis S. Yelin, Attorney, U.S. Department of Justice, 

argued the cause for appellee United States of America. With 

him on the brief were Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General, and Mark B. Stern and Alisa B. 

Klein, Attorneys. Melissa N. Patterson, Attorney, entered an 

appearance.

Howard M. Crystal and Katherine A. Meyer were on the 

brief for plaintiff-intervenors-appellees Tobacco-Free Kids 

Action Fund, et al. 

Before: TATEL, Circuit Judge, and EDWARDS and 

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL. 

TATEL, Circuit Judge: This is the latest appeal in the 

government’s long-running RICO case against the nation’s 

major cigarette manufacturers. Ten years ago, the district 

court issued a comprehensive remedial order, which included 

a requirement that defendants and their successors televise 

“corrective statements” about the dangers of smoking. Eight 

years later, one defendant, R.J. Reynolds Tobacco Company

(RJR), sought to dissolve that order as void under Federal 

Rule of Civil Procedure 60(b)(4) and unjust under Rule 

60(b)(6). The district court denied RJR’s motion, and we 

affirm. As the Supreme Court made clear in United States 

Student Aid Funds, Inc. v. Espinosa, relief under Rule 

60(b)(4) is available “only in the rare instance where a 

judgment is premised either on a certain type of jurisdictional 

error or on a violation of due process.” 559 U.S. 260, 271 
3

(2010). None of those defects exists here. And although RJR 

could have challenged its remedial obligations under Rule 

60(b)(6), its failure to do so in a timely manner dooms its 

motion now.

I.

In 1999, the United States sued RJR, Brown & 

Williamson Tobacco Corporation, and several other cigarette 

manufacturers under the Racketeer Influenced and Corrupt 

Organizations Act (RICO), 18 U.S.C. §§ 1961–68, alleging a 

conspiracy to deceive the American public about the dangers 

of cigarettes. The history of this case is described in our many

prior decisions. See, e.g., United States v. Philip Morris USA, 

Inc., 566 F.3d 1095, 1105–10 (D.C. Cir. 2009) (Remedial 

Opinion) (affirming most aspects of the district court’s 

liability finding and remedial order); United States v. Philip 

Morris USA Inc., 801 F.3d 250, 252–56 (D.C. Cir. 2015) 

(Corrective Statements Opinion) (largely upholding the 

content of the corrective statements). For purposes of this 

appeal, the relevant facts are as follows. 

Prior to trial, Brown & Williamson merged its domestic 

tobacco operations with RJR and reconstituted itself into a 

passive holding company called Brown & Williamson 

Holdings (BWH). The district court then conducted a ninemonth bench trial followed by a two-week remedial hearing. 

In 2006, the court found defendants liable and ordered a 

complex set of remedies, including a prohibition on the use of 

misleading terms such as “ultra light” and “low tar,” a ban on 

deceptive statements about the addictiveness of cigarettes, and 

the remedy at issue here: a requirement that each defendant 

televise corrective advertisements about the health 

consequences of smoking. United States v. Philip Morris 

USA, Inc., 449 F. Supp. 2d 1, 938–45 (D.D.C. 2006). The 

remedial order required the ads to be run in primetime on one 
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of “three major television networks” at least once a week for a 

year. Id. at 941. Central to this case, the order expressly stated 

that the injunction applied to “each of the Defendants, except 

[three], and to each of their . . . successors.” Id. at 937.

The tobacco manufacturers appealed, challenging many 

aspects of the order, including the corrective statements 

remedy and its application to BWH. Relying on an earlier 

opinion in which we held that RICO’s remedial provision, 18 

U.S.C. § 1964(a), authorizes only forward-looking remedies 

aimed at preventing future violations of the Act, the 

manufacturers argued that the district court lacked authority to 

require corrective statements. They also argued that the 

district court had no basis for subjecting BWH to the remedial 

order given its status as a passive holding company. In 2009, 

we upheld the corrective statements remedy and remanded for 

fact finding on “the extent of BWH’s control over tobacco 

operations” and its “current capabilities” to “commit future 

RICO violations.” Remedial Opinion, 566 F.3d at 1135, 1140. 

On remand, the parties agreed that BWH was not a defendant 

and thus not subject to the injunction, including the obligation 

to televise corrective ads. See United States v. Philip Morris 

USA, Inc., No. 99-2496, ECF No. 5846 (D.D.C. Dec. 22, 

2010) (approving the parties’ agreement concerning BWH).

Two years later, the district court issued an order setting 

forth the final text of the corrective statements, which the 

manufacturers appealed. See United States v. Philip Morris 

USA, Inc., 907 F. Supp. 2d 1, 27 (D.D.C. 2012). While that 

appeal was pending, the parties began to negotiate how the 

statements would be disseminated. Although they agreed on 

most issues, they disagreed about whether RJR had to televise 

two sets of ads, one as an original defendant and another in its 

capacity as Brown & Williamson’s successor. In RJR’s view, 

requiring it to run two sets of ads exceeded the court’s 
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remedial authority. For its part, the government insisted that 

double ads were required because the injunction, by its plain 

terms, applies to “each of the Defendants . . . and to each of 

their . . . successors.” See Philip Morris, 449 F. Supp. 2d at 

937. In June 2014, the district court entered a consent order 

outlining the implementation plan and explaining that by 

agreeing to the order RJR had not “waiv[ed]

[its] . . . challenge to the requirement that it publish Corrective 

Statements on television in its capacity as successor to Brown 

& Williamson.” United States v. Philip Morris USA, Inc., No. 

99-2496, 2014 WL 2506611, at *10 (D.D.C. June 2, 2014). 

Shortly after entry of the consent order, RJR filed a Rule 

60 motion seeking “relief from those provisions of [the 

remedial order] . . . that require corrective statements on 

behalf of [Brown & Williamson].” Philip Morris, No. 

99-2496, ECF No. 6103, at 1 (D.D.C. June 11, 2014). 

Specifically, RJR invoked Rule 60(b)(4), which allows courts 

to reopen final orders that are “void,” and Rule 60(b)(6), 

which allows courts to revisit final orders for “any other 

reason that justifies relief.” See Fed. R. Civ. P. 60. In other 

words, RJR sought to modify the injunction so that it would 

have to run only one set of ads. In May 2015, we largely 

upheld the order specifying the text of the corrective 

statements. Corrective Statements Opinion, 801 F.3d at 252–

62. A week later, the district court denied RJR’s Rule 60 

motion, prompting this appeal.

RJR argues, as it did in the district court, that the order 

requiring it to run ads as Brown & Williamson’s successor is 

void under Rule 60(b)(4) because it is punitive rather than 

preventive, and thus exceeds the district court’s RICO 

authority. RJR also argues that the double-ad requirement is 

unjust under Rule 60(b)(6).
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II.

We begin, as we must, with our jurisdiction. Steel Co. v. 

Citizens for Better Environment, 523 U.S. 83, 94 (1998) (“On 

every writ of error of appeal, the first and fundamental 

question is that of jurisdiction . . . .” (quoting Great Southern

Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900))). 

Invoking 28 U.S.C. § 1292(a), which authorizes review of 

orders “refusing to dissolve or modify injunctions,” RJR 

argues that we may hear this appeal because the district court 

denied its request to eliminate the double-ad requirement. 

Although the government agrees, intervenors, a group of six 

public health organizations, question our jurisdiction on the 

ground that the district court’s denial of RJR’s Rule 60 

motion “did not change [RJR’s] relationship” to the 

injunction. Intervenors’ Br. 18 n.7. 

Section 1292(a) creates an exception to the general rule

that appellate courts may review only “final decisions.” 

Salazar ex rel. Salazar v. District of Columbia, 671 F.3d 

1258, 1261 (D.C. Cir. 2012) (quoting Carson v. American 

Brands, Inc., 450 U.S. 79, 83 (1981)). This circuit construes

section 1292(a) narrowly in order to avoid the “debilitating” 

problems engendered by piecemeal appeals. Id. (quoting 

Coopers & Lybrand v. Livesay, 437 U.S. 463, 471 (1978)). As 

we explained in a 2012 decision in this very case, section 

1292(a) jurisdiction exists in only two circumstances: where 

the district court order “clearly grants or denies a specific 

request for injunctive relief,” such as a request to dissolve an 

injunction; or, if the order does not clearly grant or deny such 

relief, where the appellant can show that it has the “practical 

effect” of doing so. United States v. Philip Morris USA, Inc., 

686 F.3d 839, 844 (D.C. Cir. 2012); see also Salazar, 671 

F.3d at 1261–62. In the latter situation, the appellant must 

show that the order “might have a serious, perhaps 

irreparable, consequence” and can be “effectually challenged 
7

only by immediate appeal.” Philip Morris, 686 F.3d at 844

(quoting Salazar, 671 F.3d at 1262) (internal quotation marks 

omitted). An order that “merely clarifies” an injunction fails 

this test and is therefore unreviewable. Washington 

Metropolitan Area Transit Commission v. Reliable Limousine 

Service, LLC, 776 F.3d 1, 9 (D.C. Cir. 2015).

Intervenors contend that the district court’s Rule 60 order 

merely clarified RJR’s existing obligations and thus lacks the 

practical effect required for appellate jurisdiction. But this 

argument overlooks the first step of section 1292(a) analysis. 

Although it is true that the denial of RJR’s Rule 60 motion 

left its remedial obligations intact, an order’s “practical 

effect” comes into play only if it is unclear whether the order 

denied a specific request for injunctive relief. Philip Morris, 

686 F.3d at 844. Here, the remedial order expressly applies to 

“each of the Defendants . . . and to each of their . . . 

successors,” Philip Morris, 449 F. Supp. 2d at 937, RJR 

sought to dissolve its successor obligations, and the district 

court refused to do so. Because the district court clearly 

denied “a specific request to dissolve an injunction,” Salazar, 

671 F.3d at 1261, we have section 1292(a) jurisdiction.

III.

Rule 60(b)(4) authorizes relief from a final order if “the 

judgment is void.” Fed. R. Civ. P. 60(b)(4). We review a 

district court’s Rule 60(b)(4) decision de novo. Bell 

Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 

1175, 1179 (D.C. Cir. 2013).

The Supreme Court addressed Rule 60(b)(4)’s scope in 

United States Student Aid Funds, Inc. v. Espinosa, 559 U.S. at 

260. That case concerned a provision of the Bankruptcy Code 

that permits discharge of student loan debts only after the 

bankruptcy court finds that failure to discharge the debt would 
8

impose “undue hardship on the debtor and his dependents.” 

Id. at 263 (citing 11 U.S.C. §§ 523(a)(8), 1328). In Espinosa, 

the bankruptcy court discharged a student debt without 

making the requisite “undue hardship” finding. Id. at 265. 

Holding that this error did not render the confirmation order 

void, the Supreme Court explained that Rule 60(b)(4) applies 

“only in the rare instance where a judgment is premised either 

on a certain type of jurisdictional error or on a violation of 

due process that deprives a party of notice or the opportunity 

to be heard.” Id. at 271. Although the Court did not specify 

which types of jurisdictional infirmities make a judgment 

void, it did cite a First Circuit case and two treatises limiting 

voidness to defects in personal jurisdiction, subject matter 

jurisdiction, and due process. Id. None of those defects is 

present here. As RJR concedes, “the district court had subject 

matter jurisdiction in this action,” Appellant’s Br. 1, and RJR 

neither challenges personal jurisdiction nor asserts a due 

process violation. 

Instead, RJR contends that the injunction is void because 

it exceeds the district court’s “remedial jurisdiction.” 

Appellant’s Br. 26. In support, RJR notes that both RICO’s 

remedial provision, 18 U.S.C. § 1964(a), and our prior 

opinions speak in terms of the district court’s “jurisdiction” to 

prevent RICO violations, see, e.g., Corrective Statements 

Opinion, 801 F.3d at 256. RJR also points out that the Court 

in Espinosa nowhere limited “jurisdictional error[s]” under 

Rule 60(b)(4) to subject matter and personal jurisdiction. 559

U.S. at 271. This is true. Indeed, Espinosa contains a footnote 

in which the Court declined to decide whether other errors—

specifically, the discharge of certain tax and child support 

debts, which the Bankruptcy Code prohibits—might also 

render a judgment “void” for Rule 60(b)(4) purposes. Id. at 

273 n.10. Espinosa thus left the exact boundaries of voidness 

uncharted. 
9

In our view, however, mere use of the word “jurisdiction” 

is insufficient to turn a remedial error into a basis for Rule 

60(b)(4) relief. As the Supreme Court has made clear, 

jurisdiction is “a word of many, too many, meanings,” Steel 

Co., 523 U.S. at 90—a proposition all too evident in this case. 

In section 1964, the term “jurisdiction” refers to a court’s 

authority to impose certain remedies. 18 U.S.C. § 1964(a). 

That authority is fundamentally different from a court’s 

subject matter jurisdiction over a case and from its personal 

jurisdiction over the parties, both of which concern the power

to proceed with a case at all.

Extending Rule 60(b)(4) relief beyond such “fundamental 

infirmit[ies],” Espinosa, 559 U.S. at 270, would raise serious 

finality concerns. Because remedial authority is by nature 

broad, allowing Rule 60(b)(4) challenges to allegedly 

unauthorized remedies could produce an endless series of 

interlocutory appeals, especially in complex, long-running 

cases. Under RICO, for example, even though district court 

remedial authority is limited to “preventing and restraining” 

violations of the statute, courts nonetheless retain expansive 

power to craft remedies within that stricture, as the 

comprehensive injunction in this case well illustrates. 

This finality problem, moreover, is not limited to RICO 

cases. The Sherman Act, like RICO, grants district courts 

“jurisdiction to prevent and restrain violations” of the Act. 15 

U.S.C. § 4. Under RJR’s conception of voidness, litigants 

could upend complex remedial orders in any antitrust case 

years or even decades after those orders became final. The 

same holds true for litigation arising under any statute that 

grants courts remedial “jurisdiction.” See, e.g., 15 U.S.C. § 

378(a) (granting “jurisdiction to prevent and restrain

violations” of cigarette tax laws); 31 U.S.C. § 5365(a) 

(granting “jurisdiction to prevent and restrain” internet 
10

gambling violations). And if remedial overreach renders an 

order void, a statute need not even say “jurisdiction” for 

remedial errors to trigger Rule 60(b)(4) relief. Complex 

remedial schemes in voting rights, securities fraud, 

affirmative action, prison conditions, and scores of other cases 

could all be challenged on the ground that the remedies 

imposed were, in one litigant’s view, unauthorized by the 

statute at issue.

This is precisely the outcome the Supreme Court in 

Espinosa warned us to avoid. Although the Court never 

delineated the precise limits of voidness, it did make clear that 

the list of defects that render a judgment void must be 

“exceedingly short,” lest “Rule 60(b)(4)’s exception to 

finality . . . swallow the rule.” 559 U.S. at 270. Heeding that 

guidance, we hold that Rule 60(b)(4) does not permit relief 

where a court has exceeded its remedial authority. Cf. United 

States v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 

1990) (“Consent decrees that run afoul of the applicable 

statutes lead to an erroneous judgment, not to a void one.”).

Such errors are simply not the type of fundamental defects the 

Court had in mind in Espinosa.

Nothing in our prior opinions forecloses this 

understanding of Rule 60(b)(4). Invoking law of the case, 

RJR points out that our rulings in this case establish that 

RICO “constrains the district court’s remedial jurisdiction.” 

Appellant’s Br. 26. But as we have just explained, remedial 

jurisdiction differs significantly from subject matter and 

personal jurisdiction. Although we have confined district 

court remedial jurisdiction to remedies that “prevent and 

restrain” violations of the Act, see Corrective Statements 

Opinion, 801 F.3d at 256, we have never held that an order 

exceeding the court’s section 1964 authority falls within Rule 

60(b)(4). 
11

RJR also leans on Karsner v. Lothian, 532 F.3d 876 

(D.C. Cir. 2008). In that case, the district court denied a state 

Securities Commissioner’s motion to intervene in an action to 

confirm an arbitration proceeding. Id. at 879. On appeal, the 

Commissioner asserted that if the case were remanded to the 

district court she would “move under Rule 60(b)(4) to void” 

the confirmation order on the ground that the district court 

had confirmed an arbitrator’s “recommendation” when the 

statute authorized it to confirm only arbitration “award[s].” Id.

at 886. In response, we observed that “before a judgment may 

be deemed void . . . it must be determined that the rendering 

court was powerless to enter it.” Id. (quoting Combs v. Nick 

Garin Trucking, 825 F.2d 437, 442 (D.C. Cir. 1987)). We also 

noted that if “the Commissioner successfully move[d] under 

Rule 60(b)(4) to void the district court’s confirmation order,” 

the court would need to identify a source of authority for its 

revised order. Id. at 887. Seizing on this dicta, RJR contends 

that voidness applies any time a court has “acted outside of its 

authority.” Appellant’s Br. 18. Karsner concerned the 

erroneous denial of a motion to intervene. Although the court 

discussed Rule 60(b)(4) and even implied that such relief 

might be available, it never held that Rule 60(b)(4) relief was 

warranted on remand. In any event, Karsner preceded 

Espinosa by two years.

Our conclusion, which flows from Espinosa’s instruction 

that voidness is “rare,” 559 U.S. at 271, does not leave parties 

unable to challenge remedies that exceed a district court’s 

remedial authority. They may do so by filing a motion to alter 

or amend the judgment under Rule 59(e) and they can appeal 

pursuant to 28 U.S.C. § 1291 (authorizing direct appeal of 

final decisions). See Fed. R. Civ. P. 59(e). They may also seek 

relief under Rule 60(b)(6)—the issue we address next.
12

IV.

Rule 60(b)(6) “grants federal courts broad authority to 

relieve a party from a final judgment upon such terms as are 

just.” Salazar ex rel Salazar v. District of Columbia, 633 F.3d 

1110, 1116 (D.C. Cir. 2011) (quoting Liljeberg v. Health 

Services Acquisition Corp., 486 U.S. 847, 863 (1988)). To 

obtain relief under this provision, a party must file its motion 

within a “reasonable time” and demonstrate “extraordinary 

circumstances justifying the reopening of a final judgment.” 

Id. (quoting Gonzalez v. Crosby, 545 U.S. 524, 534 (2005)). 

In this case, the district court determined that RJR failed on 

both counts. We review its decision for abuse of discretion. 

Id. at 1119.

Although this circuit has rejected a strict limit to the 

reasonable time requirement, id. at 1118–19, we have held 

that in “a long-running institutional reform case . . . it would 

be an abuse of discretion to rule that a Rule 60(b)(6) motion is 

not filed within a reasonable time without finding that the 

movant’s delay has prejudiced the non-moving party,” id. at 

1119. The district court made no such finding in this longrunning, complex case. That, however, does not end the 

matter, as the district court also denied the motion on the 

ground that the “circumstances presented in [RJR’s] Motion 

[were] not extraordinary.” Philip Morris, No. 99-2496, ECF 

No. 6147, at 3 (D.D.C. May 28, 2015); see also Salazar, 633 

F.3d at 1122 (affirming the denial of a Rule 60(b)(6) motion

for lack of “extraordinary circumstances” notwithstanding the 

district court’s failure to address prejudice).

“Extraordinary circumstances” is a high bar. We

explained in Kramer v. Gates that Rule 60(b)(6) cannot be 

used “to rescue a litigant from strategic choices that later turn 

out to be improvident.” 481 F.3d 788, 792 (D.C. Cir. 2007) 

(quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 
13

572, 577 (D.C. Cir. 1980)). As the district court in this case 

observed, RJR failed to raise the double-ad issue in its 2006 

appeal of the remedial order. Moreover, when appealing the 

order specifying the text of the corrective statements, RJR 

chose not to challenge the double-ad requirement; instead it

merely mentioned its Rule 60 motion in a footnote. Under our 

precedent, failure to raise a ripe issue precludes a finding of 

extraordinary circumstances unless that failure was essentially 

“involuntary.” Salazar, 633 F.3d at 1121 (quoting Twelve 

John Does v. District of Columbia, 841 F.3d 1133, 1141 (D.C. 

Cir. 1988)).

RJR believes it meets this standard. It argues that the 

earliest opportunity to challenge its successor obligations 

came in 2014 when, during the parties’ negotiations over how 

to disseminate the corrective ads, the government took the 

position that the injunction required RJR to run double ads. 

This argument suffers from a fatal flaw. 

Recall that we have section 1292(a) jurisdiction because 

the district court denied RJR’s request to dissolve—rather 

than clarify—part of the injunction. See supra Part II. Indeed, 

RJR conceded in its Rule 60 motion that the 2006 remedial 

order requires it to run two sets of ads. See Mot. for Relief, 

Philip Morris, No. 99-2496, ECF No. 6103, at 1 (D.D.C. June 

11, 2014) (asserting that RJR, “in its capacity as successor to 

Brown and Williamson,” sought to dissolve “those provisions 

[of the remedial order] . . . that require corrective statements 

on behalf of [Brown & Williamson] . . . in addition to 

publication of the corrective statements by [RJR]”). Given the 

standard for appellate jurisdiction, supra Part II, this was a

wise concession. But it undercuts RJR’s assertion that its 

remedial obligations were unclear until 2014 and undermines

its argument for Rule 60(b)(6) relief. Simply put, RJR cannot 

have it both ways. Either the remedial order imposes a 
14

double-ad requirement, in which case we have appellate 

jurisdiction but RJR has no excuse for its untimeliness, or the 

order is unclear, in which case we would lack jurisdiction to 

entertain this appeal. 

Having failed to challenge its successor obligation at any 

earlier stage of this litigation, RJR now finds itself trapped 

between this circuit’s narrow construction of section 1292(a), 

which prevents piecemeal appeals, and the high bar for Rule 

60(b)(6) relief, which protects the finality of judgments. 

Together, these settled principles compel the conclusion that 

RJR’s challenge to the double-ad requirement comes too late.

V.

For the foregoing reasons, we affirm.

So ordered.