Two recent opinions, one from the Maine SJC and one from the First Circuit, reflect how concepts of res judicata or estoppel may not be firmly grasped:
1. Kelley v. Maine Public Employees Retirement System, 2009 ME 27, http://www.maine.gov/tools/whatsnew/attach.php?id=69231&an=1
2. Comfort v. Lynn School Committee, Docket No. 08-1735, http://www.ca1.uscourts.gov/
In Kelley, the plaintiff appealed a decision affirming the decision of the Board of Trustees of the Maine Public Employees Retirement System. Following an administrative appeal, the Board determined that Kelley did not prove that she was unable to engage in substantially gainful activity, and therefore discontinued her disability retirement benefits. The SJC affirmed, so the plaintiff lost. In doing so, the court rejected the AAG's argument that the Board was collaterally estopped from making her claim due to a 1998 decision as to her status. The SJC noted, however, that the factual issues differed, and collateral estoppel "only prevents the relitigation of factual issues when the identical issue was already determined by a prior final judgment." (P22) The issue in 1998 was whether the plaintiff's lower back problem as it then existed prevented her from engaging in substantially gainful activity. In 2006, the issue was whether the back problem as it existed eight years later, did the same. The Court also noted that the nature of the proceeding – disability benefits – anticipated periodic review.
In sum, facts can change over time, and some legal issues by their very nature involve moving targets which permit future litigation down the pike.
Comfort gets filed in the "timing is everything" category. The plaintiffs challenged a school transfer policy that considered race. Much litigation ensued, culminating in an en banc decision against the plaintiffs in 2005. The Supreme Court denied the petition for certiorari, so the case was done.
In 2007, however, the Supreme Court, in a different case involving different parties, basically ruled in a way that would strongly suggest that the First Circuit's reading of the law was incorrect, so if the Comfort plaintiffs could only sue now, they would win. What to do?
Here's what they did, which didn't work. They tried to open up the final judgment under Rule 60(b)(5). The First Circuit holds that a subsequent Supreme Court case isn't grounds enough alone to reopen.
This principle makes sense. There's no time limit to a Rule 60(b)(5) motion. Every judgment, no matter how old, could be subject to reopening every time there is a change in law. Finality and repose would go out the window.
There is some potential wiggle room, as the FIrst Circuit noted, when a judgment involves forward looking relief, like injunctions, in contexts involving long-term supervision of changing conduct or conditions. But when a judgment is not executory, or does not leave open any issues regarding the rights of the parties, then this exception cannot apply.
If you are thinking that this doesn't seem very fair – after all, the plaintiffs did everything they could and took it to the Supreme Court, and it's not their fault that the Supreme Court chose another subsequent case to rule on – the First Circuit had an answer for that general allusion to equity. What the plaintiffs should have done, and could still do, the Court noted, was simply have new complainants bring a new suit.
In sum, finality is a very important concept in the law, but you need to probe exactly what the final judgment has determined. New facts can permit litigation relevant to those facts; new parties can under certain circumstances permit litigation of legal principles decided in other cases.
