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Lois E. Adams, et al., | Plaintiffs, | | versus | Civil Action No: 98-1665 LFO, MBG, CKK | George W. Bush, et al, | Defendants | MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO RELIEVE PLAINTIFFS LOIS E. ADAMS, et al., OF JUDGMENTS ENTERED ON MARCH 20, 2000 BY THE THREE-JUDGE DISTRICT COURT Plaintiffs Lois E. Adams, et al., ask the Three-judge District Court to relieve them from judgments entered on March 20, 2000 dismissing Plaintiffs' claims concerning the constitutionality of apportionment of congressional districts. Rule 60(b) of the Federal Rules of Civil Procedure provides for this relief and the facts of this case and the judgment at issue support awarding this relief. The foundation of Plaintiffs' request is that the judgments from which they wish to be relieved were entered in violation of the due process of law, so are void as a matter of law. The essence of the due process violation is that the unique claims, arguments, and evidence presented by Plaintiffs in Civil Action Number 98-1665 were merged within and ignored in preference to antithetical claims and arguments presented in a case formerly consolidated with this case. In short, the unique claims, arguments, and evidence presented by these Plaintiffs have never been analyzed, as they should be. (1) A PRELIMINARY MATTER This Motion is made on behalf of Plaintiffs in only one of the two cases formerly consolidated and is captioned with the style of this sole case. This is appropriate since, although another case was formerly consolidated with this case, cases consolidated for convenience and efficiency under Federal Rule of Civil Procedure 42(a) "retain their separate identity and judgments rendered in each individual action are . . . final judgments within the meaning of 28 U.S.C. § 1291[,]" Fed. Dep. Ins. Corp. v. Caledonia Inv. Corp., 862 F.2d 378, 381 (1st Cir. 1988) (citation omitted), meaning they may be appealed to addressed separately after entry of judgment. Thus, it's clear that where a single judgment or order disposes of the claims or defenses of two or more parties or groups of parties, one party or group may appeal for reversal or move to vacate the judgment against that party or group without implicating or necessitating reversal or vacation of the judgment against the other(s). Howard v. United States, 214 F.2d 759, 761 (10th Cir. 1954); (2) accord Camp v. Gress, 250 U.S. 308, 318 (1919). The instant Motion concerns only the treatment of Adams v. Clinton (now properly styled Adams v. Bush, pursuant to Fed. R. Civ. P. 25(d)(1)) before the Three-judge District Court. No error or deficiency, of even minor effect, in the Court's treatment of the formerly consolidated case, Alexander v. Daley, is at issue here; in fact, Adams posits that the Court's treatment of the issues in Alexander is correct. Therefore, the Court's judgments on the claims made in Alexander are not placed in question in this Motion. RULE 60(b) PROVIDES THE REMEDY TO THIS PROBLEM Rule 60(b) of the Federal Rules of Civil Procedure provides, in pertinent part, that, "[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: . . . (4) the judgment is void . . . or (6) for any other reason justifying relief from the operation of the judgment." "Rule 60(b) [is] intended to preserve 'the delicate balance between the sanctity of final judgments . . . and the incessant command of the court's conscience that justice be done in light of all the facts[,]'" Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980) (quoting Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.), cert. denied, 399 U.S. 927 (1970) (emphasis in original); other citations omitted), and "'to prevent the judgment from becoming a vehicle of injustice,'" Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir.), cert. denied, 469 U.S. 1072 (1984) (quoting United States v. Walus, 616 F.2d 283, 288 (7th Cir. 1980)). Subsection (4) of Rule 60(b) provides that a judgment may be vacated if it is "void." This means void as a matter of law. See Retail Clerk Union Joint Pension Trust v. Freedom Food Ctr., 938 F.2d 136, 137 (9th Cir. 1991) (under Rule 60(b)(4), "the question of the validity of a judgment is a legal one"). Thus, "[t]here is no question of discretion on the part of the court when a motion is under Rule 60(b)(4) . . . . [e]ither a judgment is void or it is valid." 11 Wright & Miller, Federal Practice and Procedure - Civil, § 2862, quoted in Olle v. Henry & Wright Corp., 910 F.2d 357, 364 (6th Cir. 1990); accord Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). "'[A] party attacking a judgment as void need show no meritorious claim or defense or other equities on his behalf; he is entitled to have the judgment treated for what it is, a legal nullity.'" Combs v. Nick Garin Trucking, 825 F.2d 437, 441-42 (D.C. Cir. 1987) (quoting 7 J. Moore & J. Lucas, Moore's Federal Practice ¶ 60.25[2], at 60-224 (1985); citing Schwartz v. Thomas, 222 F.2d 305, 309 (D.C. Cir. 1955) ("'[n]o showing of merits is necessary in support of a motion to vacate a void judgment'") (quoting Wise v. Herzog, 114 F.2d 486, 494 (D.C. Cir. 1940) (other citations omitted). One of the principle reasons a judgment can be void as a matter of law is when the judgment violates or is inconsistent with mandates of due process of law. See Grun v. Pneumo Abex Corp., 163 F.3d 411, 423 (7th Cir. 1998) ("A judgment may be deemed void if the court that rendered the judgment acted in a manner inconsistent with due process of law."); Schwartz v. United States, 976 F.2d 213, 217 (4th Cir. 1992), cert. denied, 507 U.S. 919 (1993) (citing 11 Wright and Miller, Fed. Prac. and Proc. § 2862 at 198-200 (1973)); Lohman v. General Am. Life Ins. Co., 478 F.2d 719, 723 (8th Cir. 1973). The idea of procedural due process is reflected in the statement that it is a rule as old as the law that no one shall be personally bound until he or she has had a day in court, by which is meant until he or she has been duly cited to appear and has been afforded as opportunity to be heard. Judgment without such citation and opportunity lacks all the attributes of a judicial determination; it is judicial usurpation and oppression and can never be upheld where justice is fairly administered. 16B Am. Jur. 2d Const. L. § 902 at 488 (1998). "A judgment is irregular where its rendition is contrary to the course and practice of the courts; that is, when proper rules of practice have not been followed, or where some necessary act has been omitted or has been done in an improper manner." 46 Am. Jur. 2d Judgments § 20 (1994) (footnotes omitted); Rosado v. Civiletti, 621 F.2d 1179, 1197 (2d Cir. 1980) ("a fair procedure reasonably calculated to produce a correct determination of the basis for [judgment] lies at the heart of the due process of law"). In the instant case, because the Court dismissed Adams' claims on the basis of analysis of antithetical and at best incompatible claims and arguments presented in another case formerly consolidated with it, the Court acted in a manner inconsistent with due process of law as regards Plaintiffs in Adams. This situation highly unusual, if not unique. Counsel for Adams' Plaintiffs have been unable to find another instance in reported opinions where a case has been completely merged within another case, nor a reported opinion in which claims which are clearly antithetical to those addressed by the court, arguments clearly adverse to those analyzed by the court, and evidence clearly at variance with the finding or assumptions of the court are completely overlooked in an otherwise extensive and meticulous opinion. Yet the attached Analysis of the Court's Memorandum Opinion illustrates that this is what happened in this case. Thus, this case presents "something more" than the usual case or situation addressed under the otherwise comprehensive list of anticipated causes to revisit a judgment under Rule 60(b). See Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990); Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989). This situation, in short, presents dramatically "extraordinary circumstances" for relief from judgment, see Pioneer Inv. Services v. Brunswick Assoc., 507 U.S. 380, 393 (1993) (citations omitted), which Subsection (6) of Rule 60(b) addresses. Though Rule 60(b)(6) "is essentially an equitable catch-all provision that provides relief when the specific grounds for relief set forth in clauses (1) through (5) of the Rule are inapplicable[,]" (3) courts have held generally that Rule 60(b) "authorizes a district judge to act upon a showing of 'any other reason justifying relief from the operation of judgment,' [and it] represents a 'grand reservoir of equitable power . . . which, in a proper case, is to be liberally applied[ ]' . . . '[when it is] ". . . manifestly unconscionable that a judgment be given effect."'" In re Korean Air Lines Disaster of Sept. 1, 1983, 156 F.R.D. 18, 23 (D.D.C. 1994) (quoting United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977), and Greater Boston Television Corp. v. FCC, 463 F.2d 268, 279 (D.C. Cir. 1971), cert. denied, 406 U.S. 950 (1972); other citations omitted). "Rule 60(b)(6) authorizes relief from the operation of a judgment or order for any 'other reason justifying [it]' [and] 'vests power in courts adequate to enable them to vacate judgment whenever such action is appropriate to accomplish justice.'" Lepkowski v. U.S. Dept. of Treasury, 804 F.2d 1310, 1321 n.70 (D.C. Cir. 1986) (Robinson, J., concurring) (quoting Klapprott v. United States, 335 U.S. 601, 614-15, modified in another respect, 336 U.S. 942 (1949)). So while subsection (4) is the primary receptacle for addressing the problem at issue in the instant Motion for relief from judgment, this case presents a unique situation demanding exercise of the court's utmost power to relieve Plaintiffs of a judgment which is seriously unstable - if not unconscionable - as a matter of law. DUE PROCESS REQUIRES EXPLANATION OF THE "REASONS WHY" It is now a truism that the federal courts are under a "virtually unflagging obligation . . . to exercise the jurisdiction given them." England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 415 (1964); accord Deakins v. Monaghan, 484 U.S. 193, 203 (1988); Colorado River Water Conser. Dist. v. United States, 424 U.S. 800, 817, reh. den., 426 U.S. 912 (1976); McClellan v. Carland, 217 U.S. 268, 281 (1910). It is most true, that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.). Concomitant with this general obligation, the courts are more narrowly obligated "to see that no rightful claim is rejected." (4) United States v. Moreno, 68 U.S. (1 Wall) 400, 404 (1863). "Denial of any forum in which to bring [a] claim would almost surely violate [litigants'] . . . constitutional due process rights." Board of Trustees of Local 25 v. Madison Hotel, Inc., 97 F.3d 1479, 1489 & n. 17 (D.C. Cir. 1996) (Rule 60(b) motion at issue) (citing Erwin Chemerinski, Federal Jurisdiction, 172, 196-200 (2d ed. 1994), inter alia, for the proposition "that due process would be violated if federal jurisdiction were restricted in such a manner as to prevent any court . . . from hearing a claim."). A key guide or element in meeting these obligations is the concept of "due process of law." Though amorphous, it's not without meaning or fundamental demands. "Among the formal procedural safeguards ordinarily held to be required by due process, perhaps the two most striking [are] the right to be heard and the right to hear why[.]" Laurence H. Tribe, American Constitutional Law, 744 (2nd. ed. 1988) (emphasis in original). The first of these two formal procedural safeguards, the right to be heard, is elaborated and discussed in a remarkable number of cases. The right means an "opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)); accord Grannis v. Ordean, 234 U.S. 385, 394 (1914). Such a hearing serves the primary function of minimizing the risk of erroneous decisions, Mackey v. Montrym, 443 U.S. 1, 13 (1979); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12-13 (1979); Addington v. Texas, 441 U.S. 418, 423 (1979), but it also "convey[s] to the individual a feeling that the government has dealt with him fairly," Carey v. Piphus, 435 U.S. 247, 262 (1978). Thus, for instance in a situation such as that which obtained in this court prior to closure of the cases in judgment on March 20, 2000, where two cases have been consolidated for trial, the court should beware lest consolidation "deny a party his due process right to prosecute his own separate and distinct claims or defenses without having them so merged into the claims or defenses of others that irreparable injury will result." Garber v. Randell, 477 F.2d 711, 716 (2nd Cir. 1973). But the second of these two formal procedural safeguards is no less important. Due process demands that the tribunal give an explanation, a coherent statement why the final decision comes out as it does. See, e.g., Ponte v. Real, 471 U.S. 491, 497 (1985); Wolff v. McDonnell, 418 U.S. 539, 565 (1974); Goldberg v. Kelly, 397 U.S. 254, 271 (1970); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-68 (1962); Tenn. Gas Pipeline Co. v. F.E.R.C., 969 F.2d 1141, 1145 (D.C. Cir. 1992) (quoting Mobil Oil Corp. v. Dep't of Energy, 728 F.2d 1477, 1492 (Temp. Emer. Ct. App. 1983), cert. denied, 467 U.S. 1225 (1984)); C.A. Wright, Law of Federal Courts, 674 (4th ed. 1983) (citing A.L. Mechling Barge Lines, Inc. v. U.S. 368 U.S. 324 (1961); Toilet Goods Assn. v. Gardner, 387 U.S. 158 (1967), Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)). While most of these cases setting out the requirements of due process arise from administrative procedure or regulatory process, there is no reason to think that statements in these cases do not apply to civil procedure in the federal and state courts. For instance, as the Supreme Court said of the procedure under review in Burlington Truck Lines, supra, "[t]here are no findings and no analysis here to justify the choice made, no indication of the basis on which the [tribunal, in this case a federal agency] exercised its expert discretion. We are not prepared to and the Administrative Procedure Act will not permit us to accept such adjudicatory practice." 371 U.S. at 167 (emphasis added). Even the very history of arriving at working definitions of the meaning of "due process of law" illustrates that one of the central elements of it is clear expression of the reasoning on which judicial decisions are founded. When federal courts were first inundated with cases bringing "due process" claims under the (then recently-ratified) Fourteenth Amendment, the Supreme Court observed that, while the concept of "due process of law" was not new to Anglo-American jurisprudence, "the constitutional meaning or value of the phrase 'due process of law,' remains to-day without that satisfactory precision of definition which judicial decisions have given to nearly all the other guarantees of personal rights found in the constitutions of the several States and of the United States." Davidson v. New Orleans, 96 U.S. (6 Otto) 97, 101-02 (1877). Rather than risk failure in attempting to lay down a definition which presumed to be "at once perspicuous, comprehensive, and satisfactory," the Court observed that the wiser course would be to ascertain the meaning of the concept over time, "by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded." Id. at 104 (emphasis added). See also Spallone v. United States, 493 U.S. 265, 274 (1990) ("Before discussing the principles informing our conclusion . . . ."). So a court's decision is based on reasons, "those portions of the opinion setting forth the rules of law applied by the court" and these reasons are "required for the determination of the issues presented." Edmund M. Morgan, Introduction to the Study of Law, 155 (2nd ed. 1948) (emphasis added); accord Rupert Cross, Precedent in English Law, 35-101 (2nd ed. 1968); Carleton K. Allen, Law in the Making, 247 (6th ed. 1958); John C. Gray, The Nature and Sources of the Law, 261 (2nd ed. 1921). It is "the intrinsic merit" of the court's reasons "which validates a judicial decision . . . [,] not the will or fiat of the judges[.]" Edgar Bodenheimer, Jurisprudence; the Philosophy and Method of the Law, 342 (rev'd. ed. 1974) (discussing the doctrine of judicial precedents). Thus, it is a commonplace that cases should be decided "on their merits," which is to say, on the actual claims, arguments, and evidence presented in the case (Ballentine's Law Dictionary, 795 (3d ed. 1948)). See MIF Realty L.P. v. Rochester Assoc., 92 F.3d 752, 756 (8th Cir. 1996) (Rule 60(b) motion at issue); (5) Moore v. City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986) (despite demands to move a busy docket, parties are entitled to be heard on the merits); Univ. Film Exch. Inc. v. Lust, 479 F.2d 573, 576 (4th Cir. 1973) (Rule 60(b) motion at issue) (footnote omitted; citing Tolson v Hodge, 411 F.2d 123 (4th Cir. 1969) and Tozer v. Charles A. Crause Milling Co., 189 F.2d 242 (3d Cir. 1951)); Spann v. Comm'rs of District of Columbia, 443 F.2d 715, 716 n.1 (D.C. Cir. 1970) (Rule 60(b) motion at issue). At the very least, a showing of specific findings and coherent rational analysis is the foundation for later consideration of the case or the parties' claims. Courts of appeals, for instance, require some showing of reasons for decisions from which appeals are taken, in order to review the decisions. See Goland v. CIA, 607 F.2d 339, 371 (D.C. Cir. 1978) (Rule 60(b) motion at issue) (noting that court of appeals "has no fact-finding function" and concluding that 60(b) is proper recourse when facts at issue were not reviewed or adjudicated on the record); Spann v. Comm'rs of District of Columbia, 443 F.2d 715, 716 (D.C. Cir. 1970) (Rule 60(b) motion at issue); Swann v. Adams, 385 U.S. 440, 443-44, 445, reh denied, 385 U.S. 997 (1967); Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 678 (1930); Rule 50, Seventh Circuit Court of Appeals ("Whenever a district court resolves any claim or counterclaim on the merits, terminates the litigation in its court ( . . . ), or enters and interlocutory order that may be appealed to the Court of Appeals, the judge shall give his or her reasons, either orally on the record or by written statement. . . ."). More generally, courts are obliged to conduct litigation in such a way "as to insure the full and fair consideration" of the issues before the court. Richardson v. Jefferson County, Ala., 517 U.S. 793, 801 (1996) (quoting Hansberry v. Lee, 311 U.S. 32, 43 (1940) (the question before the Court was whether resolution of a class action bound individuals who had no notice or role in the class action when they brought a separate action afterwards). See, e.g., Board of Ed. of Oklahoma City v. Dowell, 498 U.S. 237, 249-50 (1991) (saying the district court "should address itself" to the merits and "should look . . . 'to every facet of school operations'" and "should then evaluate the Board's decision"); Duggins v. Steak 'n Shake, Inc., 195 F.3d 828 (6th Cir. 1999) (emphasizing "the need for the district court to give reasons for its decision"); Webb v. District of Columbia, 146 F.3d 964, 971-72 (D.C. Cir. 1998) (saying the district court must "explain its reason for issuing a default judgment" and saying this "duty to explain" arises, in part, from "the intrinsic need for self-restraint in using so powerful a weapon" and concluding that a district court "must state why . . . less onerous sanctions are not sufficient."); Murray v. Weinberger, 741 F.2d 1423, 1429 (D.C. Cir. 1984) (saying "the district court failed to specify with particularity the reasons" for its decision so remanding the case so the court may "explain fully"); Gulf Coast Fans v. Midwest Electric Importers, 740 F.2d 1499, 1512 (11th Cir. 1984) (even where one party in consolidated cases was repeatedly derelict, failing to appear for trial and failing to appear for oral argument on appeal, a trial court should relieve that party of a judgment in order to consider specific issues ignored in ruling against the party). But far beyond individual rights to due process in a given case and far beyond the functional necessities of appellate review and simply understanding what was at stake in a given case, the reasons given for the ultimate "answer" to the questions presented in a law suit serve extremely important public interests. These reasons are the actual precedents on which later litigants and the public rely for understanding what the law is. The case is not alone considered as decided and settled[ unless] the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles. Joseph Story, Commentaries on the Constitution of the United States §§ 377-78 (1833). Absent reasons for decisions, there are no precedents. The notion of a "legal memory" is now taken for granted, but it was not always so. There was a time when we had no judicial records to inform us of the law and its application, 1 Pollock & Maitland, The History of English Law Before the Time of Edward I, 168-69, 206-11 (1959 repr.), creating a body of information now taken for granted though constantly used and applied under such doctrines as stare decisis. These records of the law are intrinsic to "courts of record," which supplanted a king's "assert[ion] that his own word as to all that has taken place in his presence is incontestable." 2 Pollock & Maitland, supra, 669 (footnote omitted). Absent reasons for decision, one could only know that a certain claim was ever filed, for mere judgment says little or nothing of the merits of the claim. Thus, questions presented in a case cannot be left to "lurk in the record" without having been addressed, for they "are not to be considered as having been so decided as to constitute precedents." Webster v. Fall, 266 U.S. 507, 511 (1925); accord United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (an issue not discussed by the court cannot be taken as binding precedent on the point). In a government which is emphatically styled a government of laws, the least possible range ought to be left for the discretion of the judge . . . perhaps nothing conduces more to that object than the publication of reports. Every case decided is a check upon the judge. He cannot decide a similar case differently, without strong reasons, which, for his own justification, he will wish to make public. William Cranch, Preface, 1 Cranch (5 U.S.) iii (1804); Laurence H. Tribe, American Constitutional Law, 667 (2nd. ed. 1988). (6) "[The] validity and moral authority of a conclusion largely depend on the mode by which it was reached. . . . No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-72 (1951) (Frankfurter, J., concurring). Thus, due process of law requires more than an opportunity to pay a fee and file a claim then, some time later, to receive a piece of paper saying "claim granted" or "claim dismissed." And due process of law requires more than an opportunity to file even hundreds of pages of legal briefs in support or opposition to the claim in the interim, even hours of oral argument, even unlimited evidence in any form. After the paying of the fees, filing of the claim, submission of legal briefs, oral argument, and evidence, but before entry of that final order granting or dismissing the claim, the claimant, as well as the party against whom the claim is filed, as well as the courts of appeal and any other courts anywhere who may ever have a case similar in any way, and the public at large have a right to know why the court hearing the case granted or dismissed the claim in its final order. All these principles take on special importance in situations where two or more cases are consolidated, for there is an ever-present risk that consolidation will result in merger of all cases into a single case. Johnson v. Manhattan Ry., 289 U.S. 479, 496-97 (1933); Synar v. United States, 626 F.Supp. 1374, 1379 (D.D.C. 1986). Thus, courts must be careful lest consolidation "goes beyond [its] permissible objects to deny a party his due process right to prosecute his own separate and distinct claims or defenses without having them so merged into the claims and defenses of others that irreparable injury will result." Garber v. Randell, 477 F.2d 711, 716 (2d Cir. 1973) (emphasis added). "The systemic urge to aggregate litigation must not be allowed to trump our dedication to individual justice, and we must take care that each individual plaintiff's - and defendant's - cause not be lost in the shadow of a towering mass litigation." In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 853 (2d Cir. 1992); accord Arnold v. Eastern Air Lines, Inc., 712 F.2d 899, 906 (4th Cir. 1983) (en banc) (risk of harmful or serious prejudice trumps convenience), cert. denied, 464 U.S. 1040 (1984); Baker v. Waterman S.S. Corp., 11 F.R.D. 440, 441 (S.D.N.Y. 1951) ("a fair and impartial trial to all litigants" is the foremost concern when considering consolidation). In short, each case retains "its own separate identity," Cella v. Togum Constructeur Ensemleier, 173 F.3d 909, 913 (3d Cir. 1999) (citing Johnson, supra, and Stavey v. Charles J. Rogers, Inc., 756 F.2d 440, 442 (6th Cir. 1985)), so plaintiffs in each case retain their due process rights to a hearing and to know why their claims are disposed of as they may be in the end. DISCUSSION In Adams v. Bush (formerly Adams v. Clinton), Plaintiffs paid their filing fee, filed legal briefs and evidence, and the Defendants filed briefs and evidence in opposition to Plaintiffs' claims, and all parties were heard in oral argument. But in the end, there is no explanation for the Court's order dismissing Plaintiffs' claims (those which were under the jurisdiction of the Three-judge District Court). Rather, the Memorandum Opinion ostensibly explaining the reasons Plaintiffs' claims in both cases were dismissed presents a meticulous analysis only of the claims and arguments presented in Alexander v. Daley, formerly consolidated with Adams. The claims and arguments in Alexander are not only different from those in Adams; they are incommensurate or antithetical to those in Adams on all key points. Further, the treatment in the Memorandum Opinion of the claims and arguments presented in Alexander does not derogate from - much less dispose of - the claims and arguments presented in Adams. Rather, if applied to Adams, the Court's analysis of the claims and arguments in Alexander begs the questions presented in Adams. All these facts are set out in detail in a comprehensive factual Analysis of the Memorandum Opinion which is attached as an exhibit to this Memorandum of Points and Authorities. The attached Analysis proceeds through the Court's Memorandum Opinion, following the structure of the Memorandum, addressing all specific references to Adams and addressing all treatments of claims or arguments which are either attributed to Adams or which might, upon reflection, be taken to be relevant to claims or arguments presented in Adams. The attached Analysis does not question the Memorandum Opinion's treatment or conclusions as to the claims and arguments presented in Alexander, insofar as that treatment or those conclusions arise from the claims and arguments presented in Alexander. In fact, except for a few details which do not change the ultimate conclusions (see, e.g., Analysis (attached) at 23 n.9), Adams Plaintiffs may be said to agree with the conclusions reached as to Alexander's claims and arguments. There are points, nevertheless, where the discussion in the Memorandum Opinion appears, on its face, to run counter to the claims or arguments or evidence presented in Adams and those passages are discussed in the Analysis in order to make two points: first, to show that the discussion in the Memorandum Opinion is sound if it arises in response to and discusses only the claims and arguments presented in Alexander, and second, to show that these discussions in the Memorandum Opinion cannot be taken as dispositive of the claims or arguments presented in Adams since they run afoul of uncontroverted evidence presented in Adams but not discussed in the Memorandum Opinion. Again, the overall point is that the discussion throughout the Memorandum Opinion concerns only the claims and arguments presented in Alexander, despite references to "Adams" or, generically, "plaintiffs." The more important substantive passages of the Memorandum Opinion and the attached Analysis of the Memorandum Opinion (with reference to Plaintiffs' claims challenging the constitutionality of present apportionments of congressional districts) are (first) the discussion of threshold questions in Part Three of the Memorandum (discussed on pages 10-20 of the Analysis), for threshold questions appear in Adams as well as in Alexander, and (second) the Court's discussion of "equal protection arguments" in Part Five(A) of the Memorandum (discussed on pages 24-67 of the Analysis), and (third) the Court's discussion of Guarantee Clause "arguments" in Part Five(D) of the Memorandum (discussed on pages 67-71 of the Analysis), since both cases have been taken to present these "arguments." But the discussions in Part One of the Memorandum Opinion (the introduction, discussed on pages 5-9 of the Analysis) and in Part Four of the Memorandum Opinion (addressing the central claim in Alexander, discussed on pages 20-23 of the Analysis) are almost as important, for these discussions demonstrate the breadth and perhaps the "threshold" of the due process error at issue in this Motion. Once across that threshold - once Adams' claims were couched in terms of the claims presented in Alexander, it appears that Adams' claims were thereafter lost from view, hidden behind Alexander. For instance, at one point in the Memorandum Opinion, a specific passage in Adams' memorandum in opposition to the "Federal Defendants'" (7) Motions to Dismiss is cited for the proposition that Adams Plaintiffs are in "accord" with a central proposition in Alexander, which was that residents of the District of Columbia can presently be characterized or treated legislatively as citizens of an ersatz "state." See Memorandum Opinion, reported at 90 F.Supp.2d 35, 46; Analysis at 21. But when one goes to that specific passage in the Adams memorandum cited in the Memorandum Opinion, one finds that the passage refutes the proposition propounded in Alexander and one finds that a footnote adjacent to the passage aggressively refutes the proposition propounded in Alexander. See Analysis at 21-22. Thus, Alexander even eclipsed direct refutation of the imputed concurrence between the two cases. Adams "own separate identity," Cella, supra, 173 F.3d at 913, was "lost in the shadow of a towering mass litigation," Brooklyn Navy Yard, supra, 971 F.2d at 853. All these facts indicate that Plaintiffs in Adams have not yet seen proper closure of their day in court, 16B Am. Jur. 2d Const. L. § 902 at 488 (1998), for due process requires that they be given some reasons why their actual claims, arguments, and evidence do not support judgment in their favor. The following discussion of each of the three more important substantive parts of the Memorandum Opinion is not a substitute for the particularized treatment in the attached Analysis, but focuses on the most important portions of the Analysis in light of the legal principles at issue in the instant Motion for relief under Fed. R. Civ. P. 60(b). a: Summary of the Facts as to Discussion of Threshold Questions Two threshold questions are discussed in the Memorandum Opinion: whether "the case" before the court (singular) presents a political question and whether "plaintiffs" (as an undifferentiated unit) have standing. As the attached Analysis makes clear, both questions are discussed in terms of the claims and arguments presented in Alexander, which were not the claims and arguments presented in Adams. See Analysis (attached) at 10-20. Thus, as a technical matter, the political question issue and the standing issue, insofar as they might be relevant to Adams, have never been addressed by the Court. But this doesn't mean that the answers to either of those questions must or should come out differently for Adams than they did under the analysis provided in the Memorandum Opinion. The threshold question whether Adams presents a political question was addressed in Adams' Opposition to the Federal Defendants' Motions to Dismiss (filed Nov. 2, 1998) at 7-12, with itemized reference to the list of considerations outlined by the Supreme Court in Baker v. Carr, 369 U.S. 186, 217 (1962). The Defendants presented no credible argument to overcome Adams' Plaintiffs' showing that Adams does not present any political questions for resolution by the courts (though Defendants argued that the question presented in Alexander was a political question, and they attributed this question to Adams). Just as the courts have found no jurisdictional impediment to addressing the decennial flurry of cases challenging reapportionments in the past (and will have little trouble deciding the latest flurry, soon to start), see, e.g., State of Montana v. U.S. Dept. of Commerce, 775 F.Supp. 1358, 1361-62 (D. Mont. 1991) (Three-judge District Court), rev'd on other grounds, 503 U.S. 442 (1992) (see id. at 456-59); Com. of Massachusetts v. Mosbacher, 785 F.Supp. 230, 241-44 (D. Mass. 1992) (Three-judge District Court), rev'd on other grounds sub nom Franklin v. Massachusetts, 505 U.S. 788 (1992) (see id. at 801), the claims presented in Adams challenging the constitutionality of present apportionments are likewise justiciable. The threshold question whether Plaintiffs in Adams have standing was addressed in Adams' Opposition to the Control Board's Motion to Dismiss (filed August 4, 1998) at 3-38, in Adams' Reply to House Officers' Challenge to Standing (filed August 14, 1998) at 1-12, and in Adams' Opposition to the Federal Defendants' Motions to Dismiss (filed November 2, 1998) at 2-5, with itemized reference to the considerations outlined by the Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992), Flast v. Cohen, 392 U.S. 83, 99-100 (1968), and Baker, supra, 369 U.S. at 204. The Defendants presented no pertinent, credible argument to overcome Adams' Plaintiffs' showing that Adams' Plaintiffs have standing to bring the claims they actually bring (though they did argue that Plaintiffs in Alexander lack standing, and they presented this argument as if Plaintiffs in Adams stand in the same position as Plaintiffs in Alexander). Looking again at important recent "apportionment" cases, Montana, supra, and Franklin, supra, just as plaintiffs in those cases had standing to bring claims challenging apportionments on remarkably similar grounds to those presented in Adams, Plaintiffs in Adams have standing to bring the instant claims. The net result is that Plaintiffs in Adams demonstrated that they have standing and that the questions presented in Adams are not political questions. Further, if Plaintiffs in Alexander had standing to bring the claims they brought and if the claims presented in Alexander were not injusticiable political questions, then Plaintiffs in Adams must have standing to bring their claims, which claims are even further from the realm of political questions. Alexander demanded injunctions that the Federal Defendants do something while Adams demands injunctions that the Federal Defendants not do something. Alexander asked the court to monitor - if not direct - Congress in fashioning a legislative device which would treat the District as a "state" "for the purposes of" Article One of the Constitution, or which would treat the District as "part of" Maryland "for the purposes of" Article One of the Constitution. See Alexander's First Amended Complaint at 58-60; Analysis (attached) at 11, 13, 16, 31, 36, 73. Adams, on the other hand, asks the court to do far less: simply to order that apportionments of congressional districts - which violate the equal protection provisions of the Constitution because they do not include the citizens of the District of Columbia, while residents of all other places over which Congress has now or has had in the past the same powers under the Constitution are included - not be calculated or transmitted or reported or enforced, until and unless all people now or ever under Congress' powers of "exclusive Legislation," U.S. Const., Art. I, § 8, cl. 17; Art. IV, § 3, are treated in substantially the same manner with regard to whether all similarly-situated people are either included or not included in apportionments of congressional districts. In short, Adams asks for an order that no apportionment which violates the constitution shall be reported or enforced by the Federal Defendants. See Adams' Complaint at 25-28, Analysis (attached) at 17, 33-34, 37, 72-73. Further, the relief sought in Alexander would have had the effect of altering or amending the application of the facial terms of Article I of the Constitution, see Analysis at 67-71 & 72-75, while the relief sought in Adams - strictly equal treatment of all people residing in places where Congress has or has had the power of "exclusive Legislation" under the Constitution - would have had no such effect. If it was constitutional for all other people under that power to have been excluded from apportionments for over one hundred-fifty years of the nation's history, see Jurisdiction Over Federal Areas Within the States; Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas Within the States; Part I: The Facts and Committee Recommendation (1956) (filed, attached to Adams' Plaintiffs Motion for Summary Judgment as Exhibit V), then it must be constitutional to exclude them again from apportionments of congressional districts today, just as the residents of the District are excluded. Conversely, if it was not constitutional for them to have been excluded for all those years, then on the same facts and law, it has been unconstitutional as well to exclude the residents of the District for all these years, not to mention today, which is addressed in Count Two of Adams' Complaint (¶¶ 1-36 & 88-118), presenting a claim under the Guarantee Clause of the Constitution, Art. IV, § 4. See Adams' Memorandum in support of summary judgment at 58-76; Analysis (attached) at 67-71. Likewise, generally, Adams' strict equal protection claim is derived directly from equal protection claims which have been addressed by the Courts without serious lapse or reservation for a half century. See Reynolds v. Sims, 377 U.S. 533, reh. denied, 379 U.S. 870 (1964); Baker v. Carr, 369 U.S. 186 (1962); Brown v. Board of Education, 347 U.S. 483 (1954). Thus, Adams involves far less than the demand for "nominal statehood" at issue in Alexander, and asks far less of the courts than the demand in Alexander for affirmative mandates that federal officials do something specific which would have the effect of altering the plain terms of Article I of the Constitution. b: Summary of the Facts as to Discussion of the Equal Protection Claim The heart of Plaintiffs' case in Adams are the equal protection claims, which are summarized in the attached Analysis at 25-35, but which are also referenced and explained in other places throughout the Analysis, when pertinent to discussions in those other places in the Analysis. The equal protection claim presented in Adams follows a standard format for voting rights cases bringing equal protection claims. Plaintiffs compare themselves, as residents of the District of Columbia, to three discrete populations who are similarly or identically situated as subjects of specific powers of government, identical to the powers Congress holds over the District. The similarly or identically situated populations are residents of "Alexandria County" (also referred to as the former portion of the District south-west of the Potomac River), residents of the federal enclaves, and residents of the continental territories. For each population, Adams shows that, as a matter of law and history, the population has been and/or is today under precisely the same kind, degree, and source of power as that to which the Plaintiffs are subject under Article I, § 8, cl. 17 of the Constitution. For each population, Adams shows that - when those populations were under Congress' plenary, exclusive jurisdiction - the effect and result of that exercise of power by Congress was to completely sever the places so governed from the States, making them "extraterritorial" to the States, with the result that the residents of these places were not citizens of States, so they were not included in apportionments of congressional districts under the plain terms of the Constitution. Adams also shows that Congress changed its treatment of all comparable areas with the result that all residents of these areas are now included in apportionments of congressional districts. So the equal protection question presented in Adams boils down to, "if them, then why not us?" (or, conversely, "if not us, then why not them as well?"). Following this summary of the equal protection claim presented in Adams, the Analysis sets out the equal protection claim discussed in the Memorandum Opinion (id, at 35-41), showing that the claim discussed by the Court is not the claim presented in Adams, but is instead the claim presented in Alexander. Following this comparison, the Analysis frames how Adams presents and relies upon Evans v. Cornman, an opinion of the Supreme Court (id, at 41-54), then the Analysis sets out the discussion of Evans in the Memorandum Opinion (id, at 54-65). Though both Alexander and Adams rely on Evans, they do so in entirely different ways, to entirely different ends (see id, at 51-52, 60-61, 63). The discussion of Evans in the Memorandum Opinion doesn't reach or address the deep factual history placed into the Record in Adams, much less does it derogate from Adams' use of Evans. Overall, the discussion of Evans in the Memorandum Opinion is not unreasonable in light of Alexander's presentation and treatment of Evans, but Adams presents significant additional facts concerning the background of Evans and places those facts at issue in a way which demonstrates that certain conclusions reached in the Memorandum Opinion with regard to Evans are factually unsupportable (id, at 54-58, 63-64). (8) The net result of these showings in the attached Analysis, again, is that the equal protection claim in Adams is not discussed in the Memorandum Opinion and the claim which is addressed in the Memorandum Opinion is not the claim presented in Adams. The most important part of the Memorandum Opinion with regard to the equal protection "arguments" addressed, of course, is the conclusion with regard to the claim, which appears to be the touchstone for denial of Plaintiffs' claims in both cases: [T]he inability of District residents to vote is a consequence of Article I. Similarly, . . . the contrasting ability of enclave residents to vote is not the consequence of legislative line drawing, but rather of the Supreme Court's decision in Evans [v. Cornman] that enclave residents have a constitutional right to vote - a holding we are unable to extend to District residents both because of distinctions between the manner in which Congress has exercised its authority over the enclaves and the District, and because of the Supreme Court's decision in Albaugh [v. Tawes]. Hence, the differing treatment is the consequence not of legislative determinations but of constitutional distinctions. This court is without authority to scrutinize those distinctions to determine whether they are irrational, compelling, or anything in between. Memorandum Opinion at 67-68 (footnotes and citation omitted; underlining added). This conclusion is discussed in the Analysis at 40-41ff (segueing into discussion of Evans v. Cornman). The same point in the Memorandum Opinion is also made in the Memorandum's discussion of Evans v. Cornman, where it is concluded that "the difference in the way in which Congress has exercised its authority over enclaves and the District distinguishes this case from Evans[.]" Memorandum Opinion at 63 n.52 (underlining added). In each statement, the effective reason that the equal protection argument "before the court" is dismissed is "the distinction" or "the difference" in the "manner" or "way" "in which Congress has exercised its authority over the enclaves and the District" of Columbia. In short, the conclusion in the Memorandum Opinion is that the differential treatment legitimates the differential ability at stake in Alexander. This is reasonable insofar as Alexander presented evidence and argument going only to the differential ability to vote, without discussing or analyzing the differential status as citizens of states which was conferred by Congress when it chose to change the status of places comparable to the District as subjects of Congress' exclusive jurisdiction. But this very same differential treatment is challenged in Adams (and Adams presented copious and uncontroverted evidence to substantiate the history on which the challenge is based). It is placed front and center, and is the key factual question related to the equal protection claim. So to apply the conclusion reached in the Memorandum Opinion to Adams, we would be told that "the differential treatment legitimates the differential treatment," which is circular. It does not answer the question presented; it begs the question. Plaintiffs/movants don't mean "beg the question" in the (currently popular) sense in which television news anchors and radio commentators use the phrase, i.e., to mean something akin to "leaves the question open" or "makes it all the more imperative to answer the question." Rather, Plaintiffs/movants mean it would be a logical fallacy to apply the court's answer to Adams' claims and arguments, for when applied to Adams, the court's "answer" "assumes as true what is to be proven" in order to refute Adams' claim. See Joseph G. Brennan, A Handbook of Logic, 218-20 (2d ed. 1961) ("This fallacy occurs in any argument in which we assume as true what is to be proven. . . . The circular nature of the argument is . . . apparent[ in that,] in order to prove the conclusion . . . , the truth of [the conclusion] has been assumed in the major premise."); Morris R. Cohen and Ernest Nagel, An Introduction to Logic and Scientific Method, 379 (1934) ("It is . . . a fallacy to claim to have proved a proposition at issue if it has been smuggled . . . into our premises."). This is not just an academic nicety; it is a logical impossibility, if by giving an answer it is presumed that the answer makes any sense whatsoever and is based on the actual claims, arguments, and evidence at issue - is based, in other words, on the merits of the case. See 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d, § 2857, at 256-57 (2d ed. 1995), quoted in MIF Realty, supra, 92 F.3d at 756; accord Board of Ed. of Oklahoma City, supra, 498 U.S. at 249-50. This problem is most clear when the comparison drawn in Adams between the situation of the residents of the present District of Columbia and the residents of the former portion of the District south-west of the Potomac River - (the former) "Alexandria County" - is examined. This comparison is relegated to a footnote in the Memorandum Opinion (footnote 57, discussed in the Analysis at 35), although it's intrinsic to the equal protection claim presented in Adams. See Adams' Memorandum in support of summary judgment at 36-37; Analysis (attached) at 27-28, 39-40. There is no question that these two physical places were once under a uniform power of government, Bank of Alexandria v. Dyer, 39 U.S. (14 Pet.) 141, 145-46 (1840), and there is no discernable basis for a suggestion that there are "constitutional distinctions" between them (to use the terms of the Memorandum Opinion at 67-68). The Constitution empowers Congress to have exclusive jurisdiction over "such District . . . as may . . . become the Seat of the Government of the United States," U.S. Const., Art. I, § 8, cl. 17, and this language doesn't distinguish the extent or limits of that power within various parts of "such District." Yet the fact is that today, residents of (the former) Alexandria County are included in apportionments of congressional districts while the residents of the (present) District of Columbia are not included in apportionments. This fact results solely from "the difference in the way in which Congress has exercised its authority over" these two places (to use the terms of the Memorandum Opinion at 63 n.52). This fact, moreover, and this "difference in the way Congress has exercised its authority" are not mandated in the Constitution. The Constitution contains no directive to Congress to treat Alexandria County differently than the remainder of the District of Colombia, and it contains no excuse for it either. Yet at the same time this fact does not result from legislation or policy which "treats" Alexandria County as if it were a state or as if it were part of the Commonwealth of Virginia "for the purposes of" Article I of the Constitution. See Analysis at 20-23 & 73-74 (discussion of claims in the two cases). This fact results from Congress heeding the requests of the citizens of Alexandria County, see Adams' Complaint at ¶ 20, and then ceding Alexandria County to the Commonwealth of Virginia, so the people who reside there would be actual, full, citizens of the Commonwealth, which means they are included in apportionments of congressional districts, see Adams' Memorandum in support of Summary Judgment at 1-12. All the while, despite their pleas for similar respect, see Adams' Complaint at ¶ 31, the residents of the District remain segregated from the remainder of the United States, into which all similarly-situated people once also segregated for the same reasons are now integrated, see Adams' Memorandum in support of Summary Judgment at 12-18, 52-54. This very differential treatment is at the heart of the equal protection claim presented in Adams. Being thus challenged, it cannot logically be answered and dismissed by saying that "the differential treatment is legitimated by the differential treatment." In this regard, the discussion in the Analysis of the equal protection claim as it is discussed in the Memorandum Opinion may be the single most important and difficult portion of the entire Analysis. On the one hand, it is certainly the most important claim presented in Adams, for it draws together Congress' exercise of its constitutional power (which has been taken to legitimate and explain the status quo) and the factual history of that exercise of power, in light of one of the most fundamental rights in our legal cosmos - the right to stand before ones government as equal to all other citizens and to expect to be treated alike with all other citizens (unless government has a compelling and unavoidable need to treat one differently). As the Supreme Court said in its most recent analysis of political rights in light of the equal protection provisions of the Constitution, "[w]hen the . . . legislature vests the right to vote . . . in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter." Bush v. Gore, No. 00-949, slip op. at 5-6 (Dec. 12, 2000) (per curiam). Applied directly to the equal protection claims presented in Adams, this might be rephrased as, when Congress takes action which has the result that people under its exclusive jurisdiction obtain the right to vote, the right to vote as Congress has decided is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter subject to this original power in Congress to decide their fate. But on the other hand - the difficult hand - these claims, arguments, and evidence presented in Adams were not addressed, but were simply and completely overlooked. Adams' justiciable equal protection claims, arguments, and evidence "lurk," as it were, Webster, supra, 266 U.S. at 511; L.A. Tucker Truck Lines, supra, 344 U.S. at 38, unresolved, unanswered, viable, and waiting. The constitutional mandate of due process of law mandates that the equal protection claims, arguments, and evidence presented in Adams be addressed directly and fairly, without being sublimated or submerged into antithetical claims and arguments presented in another case. See Johnson, supra, 289 U.S. at 496-97; Synar, supra, 626 F.Supp. at 1379. c: Summary of the Facts as to Discussion of the Guarantee Clause Claim The discussion of Plaintiffs' Guarantee Clause Claim in the Memorandum Opinion is surveyed in detail in the attached Analysis at pp. 67-71, though to a lesser degree than the discussion of the Equal Protection claim, since the Memorandum Opinion devotes little space to the "argument." Since the discussion in the Analysis is nevertheless comprehensive, repeating points here adds little to the previous arguments concerning the Equal Protection claims, but it would only be noted here that the effect of the Analysis is the same as for the equal protection claim. The conclusions reached as to the Guarantee Clause "arguments" presented in Alexander are sound in light of the claims presented in Alexander, but the conclusions cannot be applied to Adams without propounding a logical fallacy almost as clear and elementary as that which results when the Memorandum Opinion's conclusions as to the Equal Protection claims are applied to Adams. In the context of Adams' Guarantee Clause claim (i.e., stripped of the premises underlying invocation of the Guarantee Clause in Alexander), the conclusion reached in the Memorandum Opinion with regard to the Guarantee Clause is a tautology or rhetorical palindrome which reads the same back-to-front as front-to-back. CONCLUSION It's assumed that there was no intent to submerge Adams into another, antithetical case, certainly at the cost of propounding such a clear and elementary denial of due process - to formally beg the essential question presented in Adams. But this is what has happened. Adams got lost in the shuffle; it was completely overshadowed and occluded by the case consolidated with it. But to have collapsed the discrete elements of the claims presented in Adams into the antithetical discrete elements of Alexander, see Analysis (attached) at 10-20, was to merge the cases into a single case in contravention of Johnson, supra, 289 U.S. at 496-97; Synar, supra, 626 F.Supp. at 1379. Nevertheless, Plaintiffs in Adams deserve the remainder of their day in court, in which to hear why they win or lose. Tribe, supra, at 744. They deserve to hear (in no less detail than was accorded Plaintiffs in the formerly consolidated case) why Congress, acting by and through the Defendants acting in their official capacities, may or may not treat them differently than Congress has treated all similarly-situated people, at the cost of a plethora of fundamental rights. They deserve to know why Congress has taken steps to include millions of other people now or ever under Congress' exclusive jurisdiction in apportionments of congressional districts, and yet cannot or should not or need not take similarly dispositive steps for the people of the District of Columbia. Are residents of the District of Columbia as it stands today (for reasons not apparent on the face of the text of the Constitution itself) second class citizens under the Constitution? If so, how is it that they are second class citizens while residents of a place formerly part of the District of Columbia are not, necessarily, also second class citizens? Are there factual reasons (which the Defendants just couldn't find and present) which necessitate this continual segregation of the people of the District from the rest of the United States, from the same benevolent treatment which Congress has accorded everyone else now or ever under its exclusive jurisdiction? Is it just unavoidable that Congress rule the lives of Loree Murray and Malcolm Wiseman (two of the Plaintiffs in Adams), who have nothing to do with the operations of the federal government whatsoever, while Congress can have relinquished its prerogative and power to rule the lives of people who hold "top secret" security clearances and perform "top secret" jobs and reside within "top secret" federal enclaves through which Loree Murray and Malcolm Wiseman couldn't even drive? To bury these questions is to deny the due process of law; to not answer the questions presented in Adams v. Bush is to deny Plaintiffs in Adams due process of law. Ponte, supra, 471 U.S. at 497; Wolff, supra, 418 U.S. at 565; Goldberg, supra, 397 U.S. at 271; Burlington Truck Lines, supra, 371 U.S. at 167-68; Tenn. Gas, supra, 969 F.2d at 1145. Plaintiffs in Adams deserve "full and fair consideration," Richardson. supra, 517 U.S. at 801, of the "separate and distinct claims" they actually bring, not merged into any other party's or case's claims, Garber, supra, 477 F.2d at 716. Thus, the Court must address the merits of Adams in their own right, Board of Ed. of Oklahoma City, supra, 498 U.S. at 249-50, and give reasons for its decision which reasons arise from consideration of the actual claims, arguments, and evidence presented in Adams, Duggins, supra, 195 F.3d 828; Webb, supra, 146 F.3d at 971-72. Since the judgments entered by the Three-judge District Court on March 20, 2000 dismissing Adams' Plaintiffs' claims were entered in violation of Plaintiffs rights to due process of law, those judgments are void as a matter of law. Grun, supra, 163 F.3d at 423; Schwartz, supra, 976 F.2d at 217; Lohman, supra, 478 F.2d at 723. Those judgments are a legal nullity. Combs, supra, 825 F.2d at 441-42. Therefore, pursuant to Federal Rule of Civil Procedure 60(b)(4), Plaintiffs in Adams v. Bush must be relieved of the rulings entered by the Three-judge District Court on March 20, 2000 dismissing their claims. Further, Federal Rule of Civil Procedure 60(b)(6) provides the court with a "grand reservoir of equitable power" which is "to be liberally applied" whenever it is "manifestly unconscionable that a judgment be given effect." United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977), and Greater Boston Television Corp. v. FCC, 463 F.2d 268, 279 (D.C. Cir. 1971), quoted in Korean Air Lines Disaster, supra, 156 F.R.D. at 23. The claims and arguments presented in Adams v. Bush follow and are built upon sound and well-settled antecedent decisions, not one of which needs be overturned to rule in favor of Plaintiffs in Adams, and all of which augur in favor of ruling in favor of Plaintiffs in Adams. See generally Adams' Memorandum in support of summary judgment. So it would be"alarming" to disregard, Joseph Story, supra, at §§ 377-78, these guides for deciding equal protection claims, especially. So the power granted under Rule 60(b)(6), exercised to relieve a party of a judgment, is more than adequate to enable the court "to vacate judgment whenever such action is appropriate to accomplish justice[,]'" Klapprott v. United States, 335 U.S. 601, 614-15 (1949); Lepkowski, supra, 804 F.2d at 1321 n.70, and insure a sound record of analysis and precedent for the future, Webster, supra, 266 U.S. at 511; L.A. Tucker Truck, supra, 344 U.S. at 38. Therefore, Plaintiffs in Adams v. Bush are also entitled to relief under Federal Rule of Civil Procedure 60(b)(6) from the judgments entered by the Three-judge District Court dismissing their claims. Upon entry of such relief from judgment, the Court can take the case back under advisement, reformulate the Record so it reflects the claims and arguments and evidence presented in Adams (even reopen the Record if the Court deems it necessary), and address the actual claims, arguments, and evidence presented in Adams, granting such relief as is demanded in the Complaint and such other and further relief as appropriate and within the court's powers Respectfully submitted, George S. LaRoche
1. Certainly, it must be noted that no animus or intent is presumed (much less indicated) in
analysis of the facts of the case or judgment.
2. "The . . . evidence does not support a finding and judgment against . . . [one defendant, so]
. . . the judgment against her is erroneous and must be reversed. It does not, however, follow as a
matter of law that the judgment against . . . [the other defendant], must likewise be reversed . . . .
It is a well settled principle of law that where a joint judgment is erroneously entered against two
defendants it may be reversed as to one and sustained against the other[.]" (quotation and citations
in footnote omitted) (the court there noted an exception which is not at issue in this situation).
3. With regard aggregation of Subsection (6) with other subsections of Rule 60(b), see In re Four
Seasons Securities Laws Litig., 502 F.2d 834, 841 (10th Cir.), cert. denied sub nom Ohio v. Arthur
Anderson & Co., 419 U.S. 1034 (1974) ("We . . . dismiss [the] contention that the provisions of Rule
60(b)(1)-(5) and 60(b)(6) are mutually exclusive and that the court below misapplied the rule in
apparently aggregating the claims under 60(b)(1), (4), and (6). It is true that the weight of authority
indicates that a Rule 60(b)(6) motion must be based upon some reason other than those stated in
clauses (1)-(5). But it is also clear that this rule stems of necessity from the one-year time limitation
which attaches to motions for relief under 60(b)(1)-(3). Rule 60(b)(6) requires only that the motion
be made within a 'reasonable time' and it would obviously frustrate the one-year limitation is a
60(b)(6) motion could be brought after this period for reasons articulated in 60(b)(1)-(3). The cases
support this interpretation of the exclusivity rule, and motions timely brought under Rule 60(b) have
encountered little technical difficulty as to whether the motion in fact comes under clause (6) or one
of the earlier clauses. [So w]here . . . the motion is timely filed under any of the 60(b) clauses, the
court should not be bound by a strict categorization of particular claims." (citations omitted)).
4. Thus it's also true that "courts cannot refuse to hear a case on the merits merely because they
would prefer not to[.]" Warth v. Seldin, 422 U.S. 490, 521 (1975) (Brennan, dissenting);
compare Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820, 857 (4th Cir. 1999), aff'd, ___
U.S. ___ (2000) (a "fashionable label of judicial restraint" can "disguise . . . advocacy of a deference
so absolute as to preclude any independent judicial evaluation of constitutionality whatsoever - a
deference indistinguishable from judicial abdication.").
5. "One important equitable consideration is whether the litigants received a ruling on the merits
of their claim. 'There is much more reason for liberality in reopening a judgment when the merits of
the case never have been considered than there is when the judgment comes after a full trial on the
merits.' In such cases, we must balance the policy favoring finality in judgments against the
competing policy of granting parties a hearing on the merits of their claims." (quoting 11 Wright,
Miller & Kane, Federal Practice and Procedure: Civil 2d, § 2857, at 256-57 (2d ed. 1995)).
6. In what is usually called the "instrumental" sense, due process of law "implements law's
rules-whatever they might be. . . . It ensures that a challenged action accurately reflects the
substantive rules applicable to such action[.]"
7. The "Federal Defendants" in Adams are the President, the Clerk of the House of
Representatives, and the Sergeant at Arms of the House. The "Federal Defendants" in Alexander
were the Secretary of Commerce, the Clerk and the Sergeant-at-Arms and the Chief Administrative
Officer of the House of Representatives, and the Secretary of the Senate and the Sergeant-at-Arms
of the Senate. The last two, however, were subject to claims remanded by the Court to a single
judge, so were not involved in the claims which were adjudicated by the Three-judge District Court.
8. It is assumed for the purposes of the Analysis that occlusion of the evidence presented in
Adams followed occlusion of the specific claims and arguments presented in Adams. There certainly
is no indication in the Memorandum Opinion that the evidence in the Record in Adams was weighed
in the balance in the process of reaching the conclusions reached in the Memorandum, much less that
it was discounted or overborne by other facts before the Court. |
|