PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FREDERICK AIKENS, 

Plaintiff-Appellant,

v.

WILLIAM E. INGRAM, JR.,

individually and in his capacity as

Adjutant General of the North

Carolina Army National Guard;

PETER VON JESS, individually and

in his capacity as Lieutenant  No. 08-2278

Colonel of the North Carolina

National Guard; BRIAN MCCARTHY,

individually and in his capacity as

a member of the North Carolina

Army National Guard; PAUL JONES,

individually and in his capacity as

a member of the North Carolina

Army National Guard,

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Dever III, District Judge.

(5:06-cv-00185-D)

Argued: March 25, 2010

Decided: July 6, 2010
Before NIEMEYER and KING, Circuit Judges, and

Eugene E. SILER, Jr., Senior Circuit Judge of the United

States Court of Appeals for the Sixth Circuit,

sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the

majority opinion, in which Senior Judge Siler joined. Judge

King wrote a dissenting opinion.

COUNSEL

ARGUED: William Woodward Webb, Sr., EDMISTEN &

WEBB, Raleigh, North Carolina, for Appellant. John Foster

Maddrey, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF:

William Woodward Webb, Jr., EDMISTEN & WEBB,

Raleigh, North Carolina, for Appellant. Roy Cooper, North

Carolina Attorney General, W. Dale Talbert, Special Deputy

Attorney General, NORTH CAROLINA DEPARTMENT OF

JUSTICE, Raleigh, North Carolina, for Appellees.

OPINION

NIEMEYER, Circuit Judge:

Frederick Aikens, formerly a colonel in the North Carolina

Army National Guard, commenced this action against his former colleagues, Adjutant General William Ingram and Lieutenant Colonel Peter von Jess, alleging that they violated his

Fourth Amendment rights by wrongfully intercepting, reading, and forwarding his e-mails while he was deployed in

Iraq. The district court dismissed the action without prejudice,

concluding that it lacked subject matter jurisdiction because

2 AIKENS v. INGRAM
of Colonel Aikens’ failure to exhaust any available intramilitary remedies. The court entered a judgment of dismissal

on September 14, 2007.

When Colonel Aikens filed his claim with the Army Board

for Correction of Military Records ("ABCMR"), the Board

determined that it could not provide him with the relief that

he sought. Afterwards, rather than filing a new action, Aikens

sought to reopen the judgment entered in this case by filing

a motion for relief from judgment under Federal Rule of Civil

Procedure 60(b)(6). The district court denied the motion, reasoning that Colonel Aikens had failed to establish the extraordinary circumstances necessary for granting relief from

judgment under Rule 60(b)(6).

For the reasons that follow, we conclude that the district

court did not abuse its discretion and affirm.

I

After Frederick Aikens was promoted to colonel in the

North Carolina Army National Guard, Lieutenant Colonel

Peter von Jess was selected to replace him as executive officer

of the 139th Rear Operations Center. Shortly thereafter, Colonel Aikens began receiving complaints about von Jess from

subordinate field officers, leading Aikens to discipline von

Jess in a July 2002 officer evaluation report. Aikens reiterated

that evaluation in a December 2002 evaluation report. Adjutant General William Ingram, who had selected von Jess to

replace Aikens as executive officer, invalidated Colonel

Aikens’ evaluation of von Jess, which provoked Colonel

Aikens to file a complaint for undue command influence with

the Department of the Army Inspector General. The Inspector

General substantiated Aikens’ complaint.

According to Aikens, when he was later deployed to

Kuwait in April 2003, two of his subordinate officers, under

instructions from General Ingram, illegally monitored and

AIKENS v. INGRAM 3
intercepted his personal e-mails from a computer system they

had set up for him. These e-mails contained personal correspondence, including negative statements about General

Ingram and others.

Thereafter, General Ingram ordered two separate investigations of Aikens, one in December 2003 and another in February 2004, both of which were later determined to be

unsubstantiated. But Colonel Aikens was later notified by the

Inspector General that he was the subject of yet another investigation for a "hostile command climate and inappropriate

relations with women." These charges were substantiated in

part by use of the intercepted e-mails. Colonel Aikens asserts

that as a result he resigned from the North Carolina National

Guard in June 2005 and that his resignation amounted to constructive discharge from the United States Army. After his

resignation, he was transferred to the Retired Reserve.

Colonel Aikens commenced this action against General

Ingram and Lieutenant Colonel von Jess, contending that the

defendants violated his Fourth Amendment rights and Army

Regulation 380-19. General Ingram and Lieutenant Colonel

von Jess filed a motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(1), arguing that the district court lacked

subject matter jurisdiction because Colonel Aikens had failed

to exhaust his intra-service military remedies through the

ABCMR. Aikens responded, arguing that exhaustion was

unnecessary because the ABCMR could not address Fourth

Amendment violations and that General Ingram and Lieutenant von Jess were, in any event, state actors not subject to the

ABCMR.

The district court granted the motion without prejudice,

directing Aikens to exhaust his intra-service administrative

remedies with the ABCMR. Aikens v. Ingram, 513 F. Supp.

2d 586 (E.D.N.C. 2007). The court noted that Colonel

Aikens’ complaint, in making his Fourth Amendment argument, relied on Army Regulation 380-19 and that the

4 AIKENS v. INGRAM
ABCMR "has authority to ‘correct an error or remove an

injustice’ in plaintiff’s military record," id. at 591 (quoting 10

U.S.C. § 1552(a)(1)), and to "‘reinstate [plaintiff] in a comparable active federal reserve status, restore his pay and order

compensatory back pay,’" id. (quoting Williams v. Wilson,

762 F.2d 357, 360 n.6 (4th Cir. 1985) (alteration in original)).

The court reasoned:

At bottom, plaintiff seeks to rescind the resignation

letter contained in his military record. In so doing, he

relies on the Fourth Amendment and on Army Regulation 380-19. However, plaintiff’s "failure to

exhaust intraservice administrative remedies [makes]

his federal claim[s] a nonjusticiable military controversy."

Id. (quoting Williams, 762 F.2d at 360) (alterations in original). The court added, however, that if the ABCMR did not

have jurisdiction, it would take no action and Colonel Aikens

could return to federal court. Id. at 592. On the other hand, if

the ABCMR had jurisdiction, then the court would be limited

to conducting judicial review of the administrative proceeding. Id.

Colonel Aikens subsequently pursued administrative remedies but was denied relief. The ABCMR wrote Colonel

Aikens, "Upon review it has been determined that your application and the remedy you seek is not within the purview of

the ABCMR; therefore, it is returned without prejudice and

without action being taken by this Board."

On March 31, 2008, more than six months after the district

court entered its judgment of dismissal, Aikens filed a motion

for relief from the judgment, pursuant to Federal Rule of Civil

Procedure 60(b)(6). He argued that the judgment should be

reopened because he had complied with the court’s requirement that he exhaust his intra-service administrative remedies

and he now might face a statute of limitations defense if he

AIKENS v. INGRAM 5
were to file a new action. The district court denied the motion

on the ground that Colonel Aikens had failed to show the "extraordinary circumstances" warranting relief from the judgment under Rule 60(b)(6). The court noted that its judgment

of dismissal without prejudice anticipated that Colonel Aikens

would return to federal court through the filing of a new

action. In response to Aikens’ suggestion that he might now

be faced with a statute of limitations defense, the court

observed that any limitations problem was the result of

Aikens’ tactical decisions not to seek administrative review

earlier and to file this action late in the limitations period.

From the district court’s order denying Aikens’ motion for

relief from judgment under Federal Rule of Civil Procedure

60(b)(6), Aikens filed this appeal.

II

Federal Rule of Civil Procedure 60(b) authorizes a district

court to grant relief from a final judgment for five enumerated

reasons or for "any other reason that justifies relief." Fed. R.

Civ. P. 60(b)(6).1 While this catchall reason includes few tex1Federal Rule of Civil Procedure 60(b) provides in full: 

Grounds for Relief from a Final Judgment, Order, or Proceeding.

On motion and just terms, the court may relieve a party or its

legal representative from a final judgment, order, or proceeding

for the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence that, with reasonable diligence,

could not have been discovered in time to move for a new

trial under Rule 59(b); 

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released or discharged; it is

based on an earlier judgment that has been reversed or

6 AIKENS v. INGRAM
tual limitations, its context requires that it may be invoked in

only "extraordinary circumstances" when the reason for relief

from judgment does not fall within the list of enumerated reasons given in Rule 60(b)(1)-(5). See Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 863 n.11, & 864 (1988). As

Chief Justice Rehnquist noted in his separate opinion in Liljeberg:

Rule 60(b) authorizes a district court, on motion and

upon such terms as are just, to relieve a party from

a final judgment, order, or proceeding for any "reason justifying relief from the operation of the judgment." However, we have repeatedly instructed that

only truly "extraordinary circumstances" will permit

a party successfully to invoke the "any other reason"

clause of § 60(b). This very strict interpretation of

Rule 60(b) is essential if the finality of judgments is

to be preserved.

486 U.S. at 873 (Rehnquist, C.J., dissenting) (citations omitted). To give Rule 60(b)(6) broad application would undermine numerous other rules that favor the finality of

judgments, such as Rule 59 (requiring that motions for new

trial or to alter or amend a judgment be filed no later than 28

days after the entry of judgment); Rule 6(b)(2) (providing that

a court may not extend the time to file motions under Rules

50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b)); and Fedvacated; or applying it prospectively is no longer equitable;

or 

(6) any other reason that justifies relief. 

And Federal Rule of Civil Procedure 60(c)(1) provides: 

Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a

year after the entry of the judgment or order or the date of the

proceeding. 

AIKENS v. INGRAM 7
eral Rule of Appellate Procedure 4(a) (requiring that appeals

be filed within 30 days after judgment).

We have thus required—in addition to the explicitly stated

requirements that the motion under Rule 60(b)(6) be filed on

"just terms" and within "a reasonable time"—that the party

filing the motion have a meritorious claim or defense and that

the party opposing the motion not be unfairly prejudiced by

having the judgment set aside. See Nat’l Credit Union Admin.

Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993). And if the reason asserted for the Rule 60(b)(6) motion could have been

addressed on appeal from the judgment, we have denied the

motion as merely an inappropriate substitute for an appeal.

See Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993

F.2d 46, 48 (4th Cir. 1993) (holding that the "voluntary, deliberate, free [and] untrammeled choice" not to appeal the original judgment or order cannot establish a basis for Rule 60

relief (quoting Ackermann v. United States, 340 U.S. 193, 200

(1950) (alteration in original)); In re Burnley, 988 F.2d 1, 3

(4th Cir. 1992) ("A Rule 60(b) motion may not substitute for

a timely appeal"). See generally 11 Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 2864, at 359-60 & n.25 (2d ed. 1995) (collecting

cases).

We review the district court’s ruling on a 60(b) motion for

abuse of discretion, see Browder v. Dir., Dep’t of Corrections

of Ill., 434 U.S. 257, 263 n.7 (1978); Nat’l Credit Union, 1

F.3d at 265, and "an appeal from denial of Rule 60(b) relief

does not bring up the underlying judgment for review,"

Browder, 434 U.S. at 263 n.7.

With these principles in hand, we now turn to Colonel

Aikens’ contention that the district court abused its discretion

in denying him relief from its prior judgment of dismissal

under Rule 60(b)(6).

8 AIKENS v. INGRAM
III

Aikens asserts that he demonstrated extraordinary circumstances because (1) "he satisfied the District Court’s (erroneous) exhaustion requirement" and (2) the defendants "likely

will assert a limitations defense to any refiled claim." He

maintains that his predicament was "caused by the District

Court’s erroneous exhaustion requirement" and that he is

therefore entitled to relief from judgment. Alternatively, he

argues that the "District Court should have treated [his] Rule

60(b)(6) motion as a new filing [of an action] rather than

denying it outright." On his observation that the defendants

would likely have filed a statute of limitations defense had he

filed a new action, Aikens speculates:

Appellees most certainly again will attempt to preclude a hearing on the merits by raising a limitations

defense. A three year limitations period applies to

Col. Aikens’s claims. Appellees will argue that the

limitations period began to run on November 24,

2003, when he became aware of the claims. Col.

Aikens timely filed his case in the District Court on

April 27, 2006, tolling the limitations period with

212 days left, but Appellees will argue that the limitations period began to run again on September 13,

2007, when the District Court dismissed the claim

for failure to exhaust and that the limitations period

never was tolled again.

(Citations omitted).

Several difficulties about Aikens’ argument become immediately apparent. First, if he was convinced that the district

court erred in dismissing his action for failure to exhaust

administrative remedies, Aikens could have appealed, but he

did not.2 Alternatively, he could have asked the district court

2Our colleague in dissent suggests that exhaustion followed by the Rule

60(b)(6) motion was a more sensible litigation strategy for Aikens because

AIKENS v. INGRAM 9
to stay the action pending exhaustion of administrative remedies, but again he did not, failing to recognize that such a stay

would be an appropriate exercise of the district court’s discretion. We have readily ordered a stay of an ongoing federal

action pending exhaustion of administrative or state proceedings, particularly to avoid statute of limitations problems. See,

e.g., Traverso v. Penn, 874 F.2d 209, 212-13 (4th Cir. 1989)

(requiring a stay rather than dismissal of § 1983 action to

allow for exhaustion of pending state proceedings); Suggs v.

Brannon, 804 F.2d 274, 279-80 (4th Cir. 1986) (abstaining

from § 1983 claim due to ongoing state prosecution, but

ordering a stay rather than dismissal because of statute of limitations problem); Stubbs v. Foley, No. 92-7164, 998 F.2d

1010 (Table), 1993 WL 261975 at *2 (4th Cir. July 2, 1993)

(vacating dismissal for failure to exhaust and remanding with

order to stay pending exhaustion due to concern about a

potential statute of limitations problem). Finally, after

exhausting administrative remedies, Aikens could have filed

a new action, rather than seeking relief from judgment or

claiming that the district court should have treated his Rule

60(b)(6) motion as a new action. In short, Aikens’ posited

predicament was as much the result of his management of the

action as the result of the district court’s allegedly erroneous

judgment of dismissal.

had he appealed the allegedly erroneous dismissal, "we might . . . have

affirmed and Aikens would have ended up before the ABCMR anyway."

Post at 27. The dissent goes so far as to suggest that this would be "the

more likely outcome," despite the dissent’s supposition that the initial dismissal was erroneous. Id. Setting aside the fact that the dissent’s suggested

litigation strategy conflicts with numerous precedents of the Supreme

Court and our court, which note specifically that Rule 60 may not be a

substitute for appeal, it is also flawed because it rests on the notion that

Aikens should not have appealed an erroneous judgment to us because we

might not have recognized that it was erroneous. Yet, this assumption,

which gives us little credit as a reviewing court, certainly cannot be made

by the dissent when it maintains throughout that the district court’s error

was an obvious mistake. 

10 AIKENS v. INGRAM
Moreover, at oral argument, Aikens’ counsel could do no

more than speculate on whether he would indeed be faced

with a legitimate statute of limitations defense. It is not clear

when Aikens’ cause of action accrued, and Aikens’ counsel

agreed that he did not know what tolling provisions might

apply or how they might apply.

The district court concluded that Aikens cannot "avoid the

statute of limitations problem he now faces by deft use of

Rule 60(b)(6). Stated simply, ‘extraordinary circumstances’

do not arise due to limitations that otherwise apply, and a

plaintiff cannot use Rule 60(b)(6) to evade such time limitations." We agree. This issue, raised by procedural choices that

Aikens made, was addressed directly by the Supreme Court

in Ackermann, where the petitioner decided not to appeal for

tactical reasons. As the Court stated:

Petitioner made a considered choice not to appeal,

apparently because he did not feel that an appeal

would prove to be worth what he thought was a

required sacrifice of his home. His choice was a risk,

but calculated and deliberate and such as follows a

free choice. Petitioner cannot be relieved of such a

choice because hindsight seems to indicate to him

that his decision not to appeal was probably wrong

. . . . There must be an end to litigation some day,

and free, calculated, deliberate choices are not to be

relieved from.

Ackermann, 340 U.S. at 198.

To the extent that Aikens rests his argument on the district

court’s earlier purportedly erroneous dismissal of his case, his

remedy was to appeal, not to file a Rule 60(b)(6) motion. It

is well established that Rule 60(b)(6) does not serve as a substitute for appeal. See Dowell, 993 F.2d at 48 (citing Ackermann, 340 U.S. at 198); Burnley, 988 F.2d at 3. The office of

appeal is designed to correct perceived errors, and any appeal

AIKENS v. INGRAM 11
is governed by an independent set of rules and time considerations. See, e.g., Fed. R. App. P. 4(a)(1) (providing, with

exceptions, that a notice of appeal must be filed "within 30

days after the judgment or order appealed from is entered").

In the circumstances of this case, we cannot conclude that

the district court abused its discretion in denying Aikens’

motion to reopen the judgment under Federal Rule of Civil

Procedure 60(b)(6).

AFFIRMED

KING, Circuit Judge, dissenting:

With sincere respect for my friends of the panel majority,

I write separately in dissent. The bottom line of this dispute

is that Frederick Aikens was right — and the district court

was wrong — about whether the exhaustion of intraservice

remedies was necessary before Aikens could pursue his 42

U.S.C. § 1983 claim. Although he was ultimately vindicated

on the exhaustion issue, Colonel Aikens found himself in a

predicament: Absent Rule 60(b) relief from the judgment of

dismissal, his § 1983 claim was vulnerable to a statute of limitations defense. And this predicament was the direct result of

the court’s mistake, not any misjudgment by Aikens or his

lawyer. Nevertheless, the district court — and now my colleagues of the majority — deemed Aikens to be ineligible for

Rule 60(b) relief. Because I would vacate and remand, I

wholeheartedly dissent.

I.

Colonel Aikens asserts that, while he was deployed to the

Middle East supporting Operation Iraqi Freedom, his personal

email was illegally intercepted and used to compel his retirement from the North Carolina Army National Guard (the

"NCARNG") after thirty-two years of service. Those responsible, according to Aikens, were NCARNG Adjutant General

12 AIKENS v. INGRAM
William E. Ingram, Jr., and Lieutenant Colonel Peter von

Jess. Consequently, on April 27, 2006, Aikens filed his

§ 1983 claim in the Eastern District of North Carolina —

apparently with more than seven months left in the applicable

three-year limitations period — alleging that Ingram and von

Jess had contravened his Fourth Amendment rights. Over

Aikens’s vehement objection, the district court dismissed the

§ 1983 claim on the mistaken belief that Aikens was required,

but had failed, to exhaust remedies with the Army Board for

Correction of Military Records (the "ABCMR"). See Aikens

v. Ingram, 513 F. Supp. 2d 586, 588 (E.D.N.C. 2007) (the

"Dismissal Order").

Generally speaking, if a service-member plaintiff fails to

exhaust "available intraservice remedies," his federal claim

against the military is "a nonjusticiable military controversy."

Williams v. Wilson, 762 F.2d 357, 360 (4th Cir. 1985). Significantly, however, we have recognized "an exception to the

exhaustion requirement": "If the outcome would predictably

be futile, the doctrine of exhaustion will not apply." Guerra

v. Scruggs, 942 F.2d 270, 276 (4th Cir. 1991) (internal quotation marks omitted). Here, Colonel Aikens contended in the

district court that there were no "available intraservice remedies" and the outcome of an ABCMR application "would predictably be futile" because the ABCMR lacked jurisdiction to

accord him any relief. See 32 CFR § 581.3(e)(1)(iii) (providing that an "application may be returned without action if . . .

[t]he ABCMR does not have jurisdiction to grant the

requested relief"); cf. Guerra, 942 F.2d at 277 (observing that

"the inability of the [ABCMR] to give the plaintiff all the

relief he seeks does not automatically excuse the failure to

exhaust" (citing Williams, 762 F.2d at 360 n.6)). Aikens principally maintained — with citation to numerous supporting

authorities — that his separation from the NCARNG was a

state matter for which no federal ABCMR remedies existed.

The court disagreed, however, analogizing to our decisions

where some ABCMR relief was thought to be available and

AIKENS v. INGRAM 13
thus exhaustion was deemed to be required. See Aikens, 513

F. Supp. 2d at 591-92.

Once the district court issued its Dismissal Order, Colonel

Aikens was faced with two obvious choices. First, he could

proceed directly to the ABCMR — plainly a far more suitable

and definitive arbiter of its own jurisdiction than any federal

court. See Randall v. United States, 95 F.3d 339, 348 (4th Cir.

1996) (recognizing that, to the extent federal courts may

review ABCMR decisions, "such decisions can be set aside

only ‘if they are arbitrary, capricious, or not based on substantial evidence’" (quoting Chappell v. Wallace, 462 U.S. 296,

303 (1983))). Alternatively, Aikens could appeal to this Court

and, if we affirmed the district court, end up before the

ABCMR anyway. Aikens selected the obvious and more efficient option: filing the ABCMR application. Four months

later, just as Aikens had predicted, the ABCMR determined

that it was powerless to act on Aikens’s application because

the relief sought therein was "not within [its] purview." J.A.

43.1

This development brought Colonel Aikens to another crossroads. On the one hand, because his § 1983 claim had been

dismissed without prejudice, he could reassert it in a newly

filed action. Such a course was problematic, however,

because Ingram and von Jess were asserting that the limitations period on the § 1983 claim had already expired (though

Aikens believed some tolling provisions might render the

claim timely). On the other hand, Aikens could seek relief

from the Dismissal Order under Rule 60(b). The Rule 60(b)

path was attractive because it would place Aikens in the same

position he had occupied prior to the district court’s erroneous

exhaustion ruling — as the proponent of an indisputably

timely § 1983 claim. Moreover, in its Dismissal Order, the

court had explicitly assured Aikens that, if his position was

1Citations herein to "J.A. __" refer to the contents of the Joint Appendix

filed by the parties in this appeal. 

14 AIKENS v. INGRAM
shown to be correct, and "the ABCMR does not have jurisdiction," he could "return to federal court." Aikens, 513 F. Supp.

2d at 592. In these circumstances, Aikens understandably

chose to file his Rule 60(b) motion. In so doing, he explained

to the court that Rule 60(b) relief was necessary to avoid any

statute of limitations problem, and he reminded the court of

its explicit assurance that, if he was proved right about the

ABCMR’s jurisdiction, he could "return to" the court. The

crux of Aikens’s position was clear-cut: He was entitled to

Rule 60(b) relief because the court had erred in ordering

exhaustion of intraservice remedies and had thereby caused

his limitations period predicament.

In assessing the Rule 60(b) motion, the district court recognized that the statute of limitations on the § 1983 claim had

"seemingly" expired. See Aikens v. Ingram, No. 5:06-cv00185, slip op. at 7-8 (E.D.N.C. Nov. 5, 2008) (the "Rule

60(b) Order").2 The court observed that, according to Colonel

Aikens’s complaint, he "discovered the facts underlying his

cause of action on or about November 24, 2003." Id. at 7. The

court further observed that "the statute of limitations seemingly began to run on that date, and it seemingly expired three

years later, on November 24, 2006." Id. at 8. Obviously, if the

limitations period ended on November 24, 2006 — as the

court assumed — it expired prior to not only the ABCMR

determination of February 6, 2008, but also before the erroneous Dismissal Order of September 13, 2007.3

2The district court’s unpublished Rule 60(b) Order is found at J.A. 44-

52. 

3Significantly, the district court declined to "resolve [the statute of limitations] issue definitively," explaining that "[if] plaintiff files a new action,

and defendants assert the statute-of-limitations defense, the court will then

address the issue." Rule 60(b) Order 8 n.1. In these circumstances, for purposes of assessing the merits of Aikens’s Rule 60(b) motion, we must

assume — as did the district court — that the limitations period had

already expired when the Dismissal Order was entered on September 13,

2007. 

AIKENS v. INGRAM 15
Notwithstanding its supposition that Colonel Aikens was

time-barred from re-asserting his § 1983 claim in a new action

before the Dismissal Order was entered, the district court

refused to vacate the judgment under Rule 60(b). The court

justified its denial of relief by attributing the statute of limitations predicament to "two tactical decisions with adverse

affects [sic]" made by Aikens himself — his decision not to

exhaust intraservice remedies before filing suit and his decision to "wait[ ] to file suit over two years into the statute of

limitations, [leaving] little time if a court were to determine

that exhaustion was required." Rule 60(b) Order 8. Even

though Aikens had accurately concluded that such an exhaustion effort was unnecessary because the ABCMR lacked jurisdiction to accord relief, in the court’s view Aikens should

have foreseen that it would incorrectly rule to the contrary.

And, having anticipated the court’s error, Aikens should have

acted to ensure that his § 1983 claim would not thereby be

rendered untimely.

To its credit, the panel majority has not ratified the district

court’s surprising position. But the majority nevertheless

blames Colonel Aikens and his lawyer for other faulty strategic choices, including their decisions to first proceed directly

to the ABCMR rather than appealing to this Court, and to file

the Rule 60(b) motion in lieu of initiating a new civil action.

Significantly, however, these choices were not the source of

Aikens’s statute of limitations quandary, nor would different

tactical decisions necessarily have solved the timeliness problem. In these circumstances, I cannot join the panel majority

in affirming the denial of Rule 60(b) relief.

II.

Simply put, the district court abused its discretion in rejecting Colonel Aikens’s request for Rule 60(b) relief. Indeed,

none of the reasons relied on by the district court and the

panel majority for their denial of such relief can withstand

scrutiny. And, to make matters worse, their analyses — which

16 AIKENS v. INGRAM
hang on condemning Colonel Aikens for losing an unwinnable game of "gotcha" — discredit our system of justice.

A.

In pursuing relief, Colonel Aikens has specifically invoked

clause (6) of Rule 60(b), which authorizes a court to relieve

a party from a final judgment for "any other reason [not

spelled out in clauses (1)-(5)] that justifies relief." Of course,

to be entitled to Rule 60(b)(6) relief, the movant must demonstrate "extraordinary circumstances." See Valero Terrestrial

Corp. v. Paige, 211 F.3d 112, 118 n.2 (4th Cir. 2000)

(explaining that "the difference between Rule 60(b)(6) and

Rules 60(b)(1)-(5) is that ‘extraordinary circumstances’ are

required to bring the Rule 60(b)(6) motion within the ‘other

reason’ language of that Rule" (internal quotation marks and

alterations omitted)). Significantly, however, our Court has

had no difficulty recognizing the existence of extraordinary

circumstances where — as here — the district court erroneously issued the underlying judgment. See White v. Investors

Mgmt. Corp., 888 F.2d 1036, 1041 (4th Cir. 1989); Compton

v. Alton Steamship Co., 608 F.2d 96, 106-07 (4th Cir. 1979).4

4Notably, we have also observed that a "mistake" within the meaning

of clause (1) of Rule 60(b) — authorizing relief from judgment because

of "mistake, inadvertence, surprise, or excusable neglect" — may include

a mistake made by the court itself. See United States v. Williams, 674 F.2d

310, 313 (4th Cir. 1982) ("In certain limited circumstances, the word ‘mistake’ in Rule 60(b) has . . . been read to include mistakes by the court.").

At first blush, this notion might seem to hurt Aikens, because the Supreme

Court has indicated that clause (1) and clause (6) "are mutually exclusive."

See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.

380, 393 (1993) (citing Liljeberg v. Health Servs. Acquisition Corp., 486

U.S. 847, 863 & n.11 (1988)). In deeming a movant to be entitled to Rule

60(b) relief because of a court’s mistake, however, we have relied on

clause (6). See Compton, 608 F.2d at 104 & n.15 (declining to resolve

whether court’s mistake constituted clause (1) "mistake," because relief

was available under clause (6)); see also White, 888 F.2d at 1041 (determining, without mentioning clause (1), that clause (6) relief was available

to remedy court’s mistake); cf. Williams, 674 F.2d at 312-13 (concluding

AIKENS v. INGRAM 17
In White, a dispute over the amount due the plaintiff on a

stock redemption, the district court had awarded summary

judgment to the defendant "without notice and without a hearing, even though there was an outstanding order [issued by

the magistrate judge] compelling the defendant . . . to produce

a critical document in the determination of the case." See 888

F.2d at 1037, 1040. We reversed the court’s denial of Rule

60(b) relief, explaining:

When the court overlooks the dispositive issue in a

case and proceeds to decide a case summarily before

discovery is concluded and before an order of discovery has been complied with, there has been a

mistake and inadvertence and one that works an

injustice. Rule 60(b) — especially as amended in

1948 by the addition of (b)(6) — clearly covers the

plaintiff’s motion to vacate the summary judgment

entered here.

Id. at 1041. In Compton, an action for unpaid wages in which

a default judgment was entered against the defendant, the disthat court’s purported error was not type of "mistake" that would justify

clause (1) relief). Moreover, the rationale for deeming clause (1) and

clause (6) to be mutually exclusive — prohibiting parties from attempting

to utilize clause (6) to avoid clause (1)’s one-year limitations period — is

not implicated here because Aikens filed his Rule 60(b) request within

seven months of the Dismissal Order. See Pioneer Inv. Servs., 507 U.S.

at 393 (recognizing that, because clauses (1) and (6) are mutually exclusive, "a party who failed to take timely action [under clause (1)] may not

seek relief more than a year after the judgment by resorting to [clause

(6)]"); see also Fed. R. Civ. P. 60(c)(1) (allowing one year for clause (1)

motion but "reasonable time" for clause (6) motion). Additionally, we

have recognized that, because Rule 60(b)’s "grounds for relief often overlap," courts are "free . . . to do justice in cases in which the circumstances

generally measure up to one or more itemized grounds." Werner v. Cabo,

731 F.2d 204, 207 (4th Cir. 1984) (citing Compton, 608 F.2d at 102). As

such, although it may also have been proper for Aikens to rely on clause

(1), it was not at all inappropriate for him to invoke clause (6). 

18 AIKENS v. INGRAM
trict court had erroneously awarded the plaintiff statutory penalty wages, resulting in an award "almost two hundred times"

the amount plaintiff was actually owed. See 608 F.2d at 99,

101. We concluded that — because of "the unusual and

extraordinary circumstances of this case and in view of the

unconscionably unjust judgment entered" — this was "just

such an extraordinary case where [Rule 60(b)(6)’s] ‘catch-all’

ground was intended to afford relief." Id. at 106, 107 (emphasis omitted).

In seeking appellate relief, Colonel Aikens also relies on

similarly decided Rule 60(b)(6) decisions from other jurisdictions, specifically involving erroneous dismissals for failure to

exhaust. See Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009);

Whitmore v. Avery, 179 F.R.D. 252 (D. Neb. 1998). In

Thompson, the district court had dismissed several of the petitioner’s federal habeas claims because, in prior state proceedings, he had failed to seek discretionary review of those

claims in the Supreme Court of Tennessee. See 580 F.3d at

433. Following the Tennessee supreme court’s promulgation

of a rule clarifying that state habeas petitioners need not

appeal to that court to exhaust their claims, the Thompson

petitioner unsuccessfully moved in the district court for Rule

60(b)(6) relief from its dismissal order. See id. The Sixth Circuit reversed the denial of the clause (6) motion, however,

concluding that the promulgation of the new Tennessee

supreme court rule was an "extraordinary circumstance" warranting such relief. See id. at 442-43. Notably, the Sixth Circuit distinguished Thompson from Gonzalez v. Crosby, 545

U.S. 524, 533 (2005), wherein the Supreme Court deemed

clause (6) relief inappropriate based on a recent change in federal decisional law regarding the interpretation of a federal

habeas procedural statute. The Thompson court explained

that, unlike the change in federal law in Gonzalez, the change

in Tennessee state law was an extraordinary circumstance

because "refusing to recognize it would disserve . . . comity

interests . . . by ignoring the state court’s view of its own

AIKENS v. INGRAM 19
law." Thompson, 580 F.3d at 443 (internal quotation marks

and emphasis omitted).

Finally, in Whitmore, after dismissing the petitioner’s federal habeas claim for failure to exhaust state remedies, the district court itself recognized that it had made a mistake worthy

of Rule 60(b)(6) relief. See 179 F.R.D. at 258-59. The court

observed, inter alia, in terms that are strikingly applicable

here, that "the petitioner [could not] have followed my

instructions and exhausted his remedies, because the claim

was not one that could be exhausted or that federal law

requires to be exhausted." Id. at 259. Accordingly, the court

concluded that "this is the type of case that warrants the

exceptional relief contemplated by Rule 60(b)(6)." Id.

Likewise, the extraordinary circumstances demonstrably

present here demand that Colonel Aikens be afforded Rule

60(b)(6) relief from the district court’s erroneous Dismissal

Order. As Aikens has aptly emphasized,

Appellees unlawfully — and possibly criminally —

invaded Col. Aikens’ privacy by monitoring and

intercepting his e-mails, while he was serving his

country in a combat zone, in violation of the Fourth

Amendment and 28 U.S.C. § 1983. Col. Aikens has

yet to be heard on the merits of his claims and, without relief, may never be. Col. Aikens’ first timely

attempt to have his case heard was dismissed for

failure to exhaust intraservice remedies, despite the

fact that no intraservice remedies were available. His

second attempt, this time before the ABCMR, as

directed by the district court, was rejected because,

as Col. Aikens predicted, the ABCMR lacks authority to provide the relief Col. Aikens seeks. Col.

Aikens’ third attempt, to revive his first lawsuit

through Rule 60(b)(6) after exhausting intraservice

remedies with the ABCMR as required by the district court, was denied. Col. Aikens now faces a stat20 AIKENS v. INGRAM
ute of limitations defense to any future attempt to

file a new lawsuit. These circumstances are exceptional.

Reply Br. of Appellant 1-2 (footnote omitted). Indeed, in

these circumstances, the court has committed "a mistake . . .

that works an injustice," see White, 888 F.2d at 1041, and

"fundamental fairness and considerations of justice . . . command that the judgment . . . be vacated," see Compton, 608

F.2d at 107. Notably, in addition to accomplishing justice for

Aikens, Rule 60(b)(6) relief would serve comity interests by

recognizing that the ABCMR is entitled to define its own

jurisdiction. Cf. Thompson, 580 F.3d at 443 (concluding that

Rule 60(b)(6) relief furthered comity interests by recognizing

and accepting "the state court’s view of its own [habeas corpus] law" (internal quotation marks omitted)).

To be sure, not all mistakes made by a court are sufficient

to warrant Rule 60(b) relief. We have admonished that

"[w]here the motion is nothing more than a request that the

district court change its mind, . . . it is not authorized by Rule

60(b)." United States v. Williams, 674 F.2d 310, 313 (4th Cir.

1982). Furthermore, we have said that "we may not review

the merits of the underlying order" in reviewing the denial of

Rule 60(b) relief. MLC Auto., LLC v. Town of S. Pines, 532

F.3d 269, 277 (4th Cir. 2008) (internal quotation marks omitted). Here, however, Colonel Aikens was not asking the district court to "change its mind" about its exhaustion ruling, or

seeking our independent review of the merits of the Dismissal

Order. Rather, he is asking for the simple recognition, based

on the ABCMR’s assessment of its jurisdiction, of the fact

that the district court itself erred in concluding that he was

required to exhaust intraservice remedies. These extraordinary

circumstances warrant Rule 60(b)(6) relief.5

5Although I have focused herein on the existence of extraordinary circumstances justifying clause (6) relief, I acknowledge that there are

threshold requirements that any Rule 60(b)(6) movant must satisfy: the

AIKENS v. INGRAM 21
B.

Neither the district court nor the panel majority disputes

that the court’s mistake in issuing the erroneous Dismissal

Order could entitle Colonel Aikens to Rule 60(b)(6) relief.

Rather, they largely ignore the court’s culpability for the statute of limitations predicament and then point the finger at

Aikens and his lawyer for poor strategic decisions. I address

— and reject — their theories in turn.

1.

As explained above, the district court blamed Colonel

Aikens for failing to foresee the erroneous Dismissal Order

and then taking action, spurred by such foresight, to ensure

the timeliness of his § 1983 claim. In the court’s view, Aikens

"needed only to have exhausted remedies with [the] ABCMR

before filing suit within the three-year statute of limitations.

He did not and cannot now find comfort within Rule

60(b)(6)." Rule 60(b) Order 9. This premise for denying

clause (6) relief is fundamentally flawed as a matter of fact

and law.

First of all, the district court failed to acknowledge its primary role in creating the statute of limitations predicament. At

the time of the Dismissal Order, Colonel Aikens zealously

objected to the proposition that ABCMR remedies were available and thus had to be exhausted. And the court itself recognized the possibility that its exhaustion ruling might be

Rule 60(b) motion must be timely; the movant must possess a meritorious

claim or defense; and there must be no unfair prejudice to the nonmoving

party by having the judgment set aside. See Heyman v. M.L. Mktg. Co.,

116 F.3d 91, 94 n.3 (4th Cir. 1997) (citing Nat’l Credit Union Admin. Bd.

v. Gray, 1 F.3d 262, 264 (4th Cir. 1993)). Notwithstanding Ingram and

von Jess’s contentions to the contrary — which the district court did not

address — it is apparent that Aikens has satisfied each of these threshold

requirements for Rule 60(b) relief. 

22 AIKENS v. INGRAM
wrong, assuring Aikens that if his position was correct, and

"the ABCMR does not have jurisdiction," he could "return to

federal court." Aikens, 513 F. Supp. 2d at 592. Once his position had been validated by the ABCMR, Aikens sought to

accept the court’s invitation to "return to federal court," filing

his Rule 60(b) motion (rather than a new action) because of

the potential statute of limitations problem. In disposing of the

Rule 60(b) motion, however, the court made a 180-degree

turn. It disclaimed ever "implying that plaintiff could return

to court in this action." Rule 60(b) Order 7. "Rather," according to the court, it "was making the unremarkable observation

that if the ABCMR determined that it lacked jurisdiction,

nothing in the court’s dismissal would prevent plaintiff from

filing a new action against Ingram and von Jess." Id. In the

very next paragraph of the Rule 60(b) Order, however, the

court contradicted its assertion that the Dismissal Order did

not foreclose a new action, recognizing that the statute of limitations on Aikens’s § 1983 claim had likely expired well

before the Dismissal Order was even entered. See id. at 7-8.

Surprisingly, the court blamed Aikens, rather than itself, for

creating the statute of limitations issue. As the court would

have it, the timeliness problem resulted from Aikens’s failure

to anticipate the erroneous Dismissal Order, and not from the

court’s own mistake.

There is simply no basis, however, for the district court’s

theory that Colonel Aikens should have foreseen the erroneous Dismissal Order and proceeded accordingly. Although the

court found that Aikens and his lawyer "must have known

that [Aikens] would face the ABCMR exhaustion issue in his

case," Rule 60(b) Order 7, that finding stops well short of the

proposition that Aikens should have expected the court to

erroneously dispose of that issue.6 And indeed, once Aikens

6The district court premised its finding that Aikens had notice of the

exhaustion issue on the fact that his lawyer represented another plaintiff,

David Culbreth (a former Active Guard Reserve Officer for the

NCARNG), in a separate § 1983 action against Ingram and von Jess arisAIKENS v. INGRAM 23
assessed the exhaustion issue, he concluded — correctly —

that the ABCMR was powerless to award him relief.

The district court also points out that, in dismissing Colonel

Aikens’s § 1983 claim for failure to exhaust intraservice remedies, it "acted in accordance with a veritable wall of Fourth

Circuit precedent requiring such exhaustion." Rule 60(b)

Order 7. In this regard, the court suggests that its Dismissal

Order was foreseeable — and perhaps goes so far as to suggest that it did not actually err in its exhaustion ruling (a proposition pursued on appeal by Ingram and von Jess). See Br.

of Appellees 22 (contending that there can be no Rule 60(b)

relief premised on a "mistake" made by the court, because the

"court’s conclusion that Aikens was required to exhaust his

intraservice administrative remedies . . . was correct under

Fourth Circuit precedent").

Notwithstanding our Court’s precedent, however, Colonel

Aikens correctly concluded that he could not obtain relief

ing from their interception of Aikens’s email — an action in which the

defendants first asserted that there was an exhaustion requirement. See

Culbreth v. Ingram, 389 F. Supp. 2d 668, 675 (E.D.N.C. 2005) (Howard,

J.) (dismissing Culbreth’s action without reaching exhaustion issue). The

court observed that, although the Culbreth judge did not resolve the

exhaustion issue in his dismissal order of September 29, 2005, he suggested that the ABCMR lacked jurisdiction to afford relief because Culbreth "was [not] federalized during the relevant time frame." Rule 60(b)

Order 7. The court further observed that, unlike Culbreth, Aikens was

"federalized" at the pertinent time (i.e., when his email was intercepted,

but not when his separation from the NCARNG occurred). Id. It was thus

"obvious[ ]" to the court that Aikens, via his lawyer, "was well acquainted

with Culbreth and the issues involved when plaintiff filed his complaint

on April 27, 2006." Id. I agree that these circumstances indicate that

Aikens and his lawyer had reason to anticipate the exhaustion issue and

to question whether the ABCMR might have jurisdiction to give Aikens

(but not Culbreth) relief. Significantly, however, these circumstances do

not demonstrate that, "know[ing] that he would face the ABCMR exhaustion issue in his case," id., Aikens should have concluded that ABCMR

remedies were available to him or otherwise foreseen the court’s erroneous exhaustion ruling. 

24 AIKENS v. INGRAM
from the ABCMR — a legal conclusion confirmed by the

ABCMR itself. Indeed, a federal court’s view of the

ABCMR’s jurisdiction is of no import when the ABCMR

itself has spoken on the issue. The federal courts may only

forecast how the ABCMR might delineate its own jurisdiction, not define the ABCMR’s jurisdiction for it. See Guerra

v. Scruggs, 942 F.2d 270, 276 (4th Cir. 1991) (recognizing

that, in determining whether exhaustion is necessary, we must

assess "[i]f the outcome would predictably be futile" (internal

quotation marks omitted)); see also Randall v. United States,

95 F.3d 339, 348 (4th Cir. 1996) (observing that, insofar as

ABCMR decisions are subject to federal court review at all,

"such decisions can be set aside only if they are arbitrary,

capricious, or not based on substantial evidence" (internal

quotation marks omitted)). As the district court itself recognized in its Dismissal Order, courts must "grant[ ] deference

to the military to handle its own affairs." Aikens, 513 F. Supp.

2d at 591-92. As such, it is inappropriate to fault Colonel

Aikens for accurately predicting that the ABCMR would

renounce jurisdiction over his application, rather than foreseeing and protecting himself from the district court’s erroneous

ruling to the contrary.

Finally, the district court unjustifiably equated this matter

to decisions in which "[t]he Supreme Court and the Fourth

Circuit have denied Rule 60(b)(6) relief when the moving

party made a tactical choice that later proved unwise." Rule

60(b) Order 6 (citing Ackermann v. United States, 340 U.S.

193, 200 (1950) (movant made "voluntary, deliberate, free,

untrammeled choice" not to file timely appeal based on belief

he would have to sell home to pay costs); Schwartz v. United

States, 976 F.2d 213, 218 (4th Cir. 1992) (movant made "calculated, free, and deliberate" decision to settle dispute)). More

specifically, the court relied on inapposite decisions for the

proposition that Colonel Aikens could not make "deft use of

Rule 60(b)(6)" to evade "time limitations that otherwise

apply." Id. at 8 (citing, inter alia, Dowell v. State Farm Fire

& Cas. Auto. Ins. Co., 993 F.2d 46, 47-48 (4th Cir. 1993)

AIKENS v. INGRAM 25
(movant failed to timely request certification of state law

question or appeal adverse judgment); Home Port Rentals,

Inc. v. Ruben, 957 F.2d 126, 133 (4th Cir. 1992) (movant

sought clause (6) relief from default judgment for "excusable

neglect" to circumvent clause (1) time limitations)). Neither

these nor any other applicable authorities support the notion

that Colonel Aikens’s failure to foresee and safeguard against

the erroneous Dismissal Order constitutes an "unwise tactical

choice" foreclosing Rule 60(b)(6) relief, or that Aikens cannot

make "deft use of Rule 60(b)(6)" to remedy the timeliness

problem directly resulting from the court’s mistake.

2.

Apparently recognizing the district court’s analysis as

unsound, the panel majority takes a different — but equally

flawed — tack. It faults Colonel Aikens for resorting to a

Rule 60(b) motion to revive his § 1983 claim, without pursuing other strategies. According to the majority, when the erroneous Dismissal Order was entered, Aikens and his lawyer

could have appealed to this Court or moved the district court

for a stay pending exhaustion of intraservice remedies. Additionally, the majority asserts, Aikens could have initiated a

new action in the district court after the ABCMR confirmed

that it lacked jurisdiction to accord relief. In the majority’s

view, Aikens’s predicament was thus "as much the result of

his management of the action as the result of the district

court’s allegedly erroneous judgment of dismissal." Ante at

10.

As explained above, however, Colonel Aikens’s statute of

limitations quandary was the direct result of the district

court’s mistake, not any tactical decision made by Aikens and

his lawyer. Furthermore, the majority merely speculates that

its proposed strategies would have solved Aikens’s timeliness

problem. Perhaps, for example, if Aikens had appealed the

Dismissal Order, we would have reversed the district court’s

ruling that intraservice remedies were available and required

26 AIKENS v. INGRAM
to be exhausted. But we might instead have affirmed and

Aikens would have ended up before the ABCMR anyway —

the more likely outcome if the district court indeed "acted in

accordance with a veritable wall of Fourth Circuit precedent."

See Rule 60(b) Order 7. Regardless of the ultimate disposition, our decision could only have constituted a prediction —

and not the definitive word — on whether the ABCMR possessed jurisdiction. As such, it was entirely reasonable for

Aikens to proceed directly to the ABCMR and then return to

the district court on his Rule 60(b) motion. In such circumstances, the Rule 60(b) motion could never be, as the majority

characterizes it, a forbidden "substitute for appeal." See ante

at 11.7

As for the possibility that Colonel Aikens could have

moved in the district court for a stay pending exhaustion of

intraservice remedies, it is again speculative that a stay

motion was a genuine alternative to the Rule 60(b) motion.

The majority simply recognizes that "a stay would be an

appropriate exercise of the district court’s discretion," relying

on decisions in which we directed proceedings to be stayed.

See ante at 9-10. Importantly, however, the majority does not

— and cannot — assert that the district court would have been

obliged to enter a stay if Aikens had requested one.

7Notably, the panel majority asserts that this dissent "goes so far as to

suggest that" — if Colonel Aikens had appealed the erroneous Dismissal

Order — affirmance "would be ‘the more likely outcome.’" Ante at 10 n.2.

In so asserting, the majority quotes language from this dissent out of context. My full statement is that affirmance would be "the more likely outcome if the district court indeed ‘acted in accordance with a veritable wall

of Fourth Circuit precedent,’" as purported in the Rule 60(b) Order. Contrary to the majority, I do not presume to know how this Court would have

ruled if Aikens had appealed the Dismissal Order — and thus this dissent

neither "rests on the notion that Aikens should not have appealed" nor

"gives us little credit as a reviewing court." See ante at 10 n.2. Rather, as

repeatedly explained herein, I simply recognize that this Court was positioned only to predict (not decide) whether the ABCMR possessed jurisdiction and, thus, it was entirely reasonable for Aikens to proceed directly

to the ABCMR. 

AIKENS v. INGRAM 27
The notion that Colonel Aikens could have initiated a new

action is similarly speculative — and, more importantly, disregards the district court’s assumption that Aikens was timebarred from re-asserting his § 1983 claim in a new action long

before the erroneous Dismissal Order even issued. Remarkably, the majority goes so far as to criticize Aikens and his

counsel for being unsure "whether he would indeed be faced

with a legitimate statute of limitations defense," see ante at

11, even though the district court expressed uncertainty about

the limitations period issue and refused to resolve it unless

and until Aikens filed a new action, see supra note 3 (citing

Rule 60(b) Order 8 n.1). Clearly, any attempt to re-assert his

§ 1983 claim in a new action would have required Aikens to

gamble that the district court would accept his tolling arguments and reject Ingram and von Jess’s statute of limitations

defense. Because of the riskiness of that strategy, it was

entirely justifiable for Aikens to file his Rule 60(b) motion

instead. Indeed, Aikens’s Rule 60(b) move is especially rational and understandable in light of the Dismissal Order — in

which the district court explicitly assured Aikens that if his

position was vindicated, and "the ABCMR does not have

jurisdiction," he could "return to federal court." Aikens, 513

F. Supp. 2d at 592. Although the district court may now wish

to retreat from that representation, Aikens was plainly entitled

to rely on the court’s word.

In summary, it is not at all evident that the majority’s proposed strategies would have been either feasible or effective.

Moreover, the tactics that Colonel Aikens actually did pursue

were just as legitimate — if not more so — than the strategies

invoked by the majority. If the majority’s approach is all it

takes to foreclose a finding of extraordinary circumstances for

Rule 60(b)(6) relief — if a court can punish a movant for pursuing reasonable and legitimate strategies simply because,

with the benefit of hindsight, the court can conjure up possible alternatives — it is hard to imagine that Rule 60(b)(6)

relief can ever be obtained.

28 AIKENS v. INGRAM
III.

Pursuant to the foregoing, I would vacate the district

court’s Rule 60(b) Order and remand for such further proceedings as may be appropriate.

I respectfully dissent.

AIKENS v. INGRAM 29