On Appeal from the United States District Court for the Middle District of Pennsylvania (Scranton) C. A. Nos. 84-0823 and 84-0840.
Sloviter, Stapleton, and Hunter, Circuit Judges.
STAPLETON, Circuit Judge.
This case presents the question of whether the "prior judgment" clause of Fed.R.Civ.P. 60(b)(5)*fn1 entitles a government agency to relief from a final and unappealed adverse judgment where the opinion supporting that judgment relies upon the holding in another case that the agency subsequently succeeds in overturning. The district court held that the agency was entitled to relief. We will reverse.
Following conviction on narcotics offenses, Roy Harris was sentenced in 1981 to twelve years' imprisonment and a ten-year special parole term.*fn2 In 1984, the examiner panel, using the parole guidelines in effect at the time of the initial hearing, determined that Harris should be required to serve in excess of 100 months,*fn3 and finding no reason to go outside the guidelines, recommended that Harris be continued to the expiration of his sentence. In effect, this recommendation amounted to a requirement that Harris serve 96 months.*fn4 The examiners' recommendation was ultimately affirmed by the National Appeal Board of United States Parole Commission (the Commission).*fn5
At the time of Harris' initial parole hearing, we had decided in United States ex rel. Forman v. McCall, 709 F.2d 852, 862 (3d Cir. 1983) (Forman I), that the Commission's application of the parole guidelines in effect at the time of the hearing rather than the guidelines in effect at the time of the offense might violate the ex post facto clause of the Constitution if the guidelines were considered "laws." We remanded the case to the district court in the Middle District of Pennsylvania for a factual determination "on the fullest possible record" of whether the Commission retained "substantial flexibility" in exercising its discretion in applying the guidelines, which would demonstrate that the guidelines are not "law." Id.
Shortly after his initial parole hearing, Harris sought writs of habeas corpus and mandamus in the Middle District of Pennsylvania,*fn6 contending, on the basis of Forman I, that the Commission's use of the guidelines in effect at the time of Harris' hearing rather than those in effect at the time of his offense constituted an ex post facto violation.
By the time Harris had exhausted his administrative remedies, the district court had issued its opinion on remand in Forman holding that the guidelines were "laws" within the meaning of the ex post facto clause. Forman, Civil No. 81-0553 (M.D. Pa. Sept. 14, 1984) (Forman II). The Commission appealed that decision.
Relying on Forman II, the district court in Harris' case ordered the Commission to conduct "a new parole hearing and to employ therein the parole guidelines extant at the time of [Harris'] offense." Harris v. Martin, Civil Nos. 84-0823, 84-0840, slip op. at 5-6 (M.D. Pa. Dec. 12, 1984), App. at 30-31. Although the Commission's appeal of Forman II was then pending, the Commission did not appeal the December 12, 1984 injunctive judgment in Harris' case. Instead, the Commission complied with the December 12, 1984 order and conducted a new hearing for Harris on February 13, 1985, applying the guidelines existing at the time of Harris' offense. The examiner panel recommended service of 66 months before parole. Ultimately the National Commissioners voted to release Harris after 76 months.*fn7 Harris then appealed to this court and, finding that the Commission had not abused its discretion, we affirmed the district court. Harris v. Martin, 792 F.2d 52 (3d Cir. 1986).
In the interim, this court had reversed the district court's decision in Forman II and held that the guidelines were not "laws" within the meaning of the ex post facto clause. United States ex rel. Forman v. McCall, 776 F.2d 1156 (3d Cir. 1985), cert. denied, 476 U.S. 1119, 106 S. Ct. 1981, 90 L. Ed. 2d 663 (1986) (Forman III).*fn8 Thereafter, on April 1, 1986, at a point when the district court's December 12, 1984 judgment in Harris' case had been fully complied with and the 76 month decision had become final, the Commission moved the district court for relief from the December 12, 1984 judgment "on the ground that the prior judgment upon which it was predicated, the decision on remand in [ Forman ] ha[d] been reversed." App. at 9. In light of Forman III, the district court granted the Commission's motion, vacated the December 12, 1984 judgment, and reentered judgment for the Commission, thereby permitting the Commission to consider Harris' parole application under the more current guidelines.*fn9 The district court relied on the "prior judgment" clause of Fed.R.Civ.P. 60(b)(5).*fn10
Harris appeals from the district court's decision. This court has jurisdiction under 28 U.S.C. § 1291. The standard of review of a district court's grant of relief under Rule 60(b) is abuse of discretion. See Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 263 n.7, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978); Inmates of Allegheny County Jail v. Wecht, 75 ...