No UNITED STATES COURT OF APPEALS For the Ninth Circuit UNITED STATES OF AMERICA, STATE OF WASHINGTON; et al, SAMISH INDIAN TRIBE,

Case: 08-35794 11/04/2008 Page: 1 of 60 DktEntry: 6696470 No. 08-35794 UNITED STATES COURT OF APPEALS For the Ninth Circuit UNITED STATES OF AMERICA, v. STATE OF WASHINGTON; et al, v. SAMISH INDIAN TRIBE, Plaintiff, Defendants - Appellees, Movant - Appellant On Appeal From The United States District Court For The Western District of Washington Case No. C70-9213, Subproceeding 01-2 Honorable Ricardo S. Martinez, United States District Judge MOVANT- APPELLANT SAMISH INDIAN TRIBE S OPENING BRIEF Craig J. Dorsay Dorsay & Easton, LLP 1 S.W. Columbia St, Suite 440 Portland, OR 97258 (503) 790-9060

Case: 08-35794 11/04/2008 Page: 2 of 60 DktEntry: 6696470 Table of Contents Page STATEMENT REGARDING ORAL ARGUMENT....................... 1 STATEMENT OF JURISDICTION.................................... 1 STATEMENT OF ISSUES........................................... 1 STATEMENT OF CASE............................................ 2 STANDARD OF REVIEW........................................... 6 SUMMARY OF THE ARGUMENT................................... 6 ARGUMENT...................................................... 7 A. Controlling Law......................................... 7 B. Discussion of Specific Rulings of the District Court Denying the Samish Tribe s Rule 60(b)(6) Motion....................... 14 a. Extraordinary Circumstances......................... 15 b. Finality Concerns.................................. 18 c. Timeliness........................................ 21 d. Equitable Considerations............................ 35 CONCLUSION................................................... 49 CERTIFICATION OF COMPLIANCE PURSUANT TO FED.R.APP.P. 32(a)(7)(C) and CIRCUIT RULE 32-1 FOR CASE NUMBER 08-35794......................................... 51 STATEMENT OF RELATED CASES................................. 52 i

Case: 08-35794 11/04/2008 Page: 3 of 60 DktEntry: 6696470 CERTIFICATE OF SERVICE....................................... 53 Cases Table of Authorities Ackermann v. United States, 340 U.S. 193 (1950)................... 21,22,32 Adamian v. Lombardi, 608 F.2d 1224 (9 th Cir. 1979), cert denied, 446 U.S. 938 (1980)............................................................ 9 C.K.S. Engineers v. White Mtn. Gypsum Co., 726 F.2d 1202 (7 th Cir. 1984).... 36 Community Dental Services. v. Tani, 282 F.3d 1164 (9 th Cir. 2002)....... 16,23 Delay v. Gordon, 475 F.3d 1039 (9 th Cir. 2007).......................... 36 Dias v. Bank of Hawaii, 764 F.2d 1292 (9 th Cir. 1985)............... 11,12,36 Dragor Shipping Corp. v. Tak Can Co., 37 F.2d 722 (9 th Cir. 1967)........... 8 Edelman v. Jordan, 415 U.S. 651 (1974)............................... 14 Firth v. United States, 554 F.2d 990 (9 th Cir. 1977)................. 17-18,24 Gould v. Mutual Life Ins. Co. of New York, 790 F.2d 769 (9 th Cir. 1986)... 12-13 Greene v. Babbitt, 943 F.Supp. 1278 (W.D. Wash. 1996)...... 2,26,30,41,43,44 Greene v. Babbitt, 64 F.3d 1266 (9 th Cir. 1995)........................ 5,28 Greene v. U.S., 996 F.2d 973 (9 th Cir. 1993).......................... 5,39 Halderman v. Pennhurst State School & Hosptial, 673 F.2d 628 (3d Cir. 1982)(en banc), cert. denied, 464 U.S. 1038 (1984)........................... 12,36 Hanna Boys Center v. Miller, 853 F.2d 682 (9 th Cir. 1988)............. 9,24,25 ii

Case: 08-35794 11/04/2008 Page: 4 of 60 DktEntry: 6696470 Hawaii Carpenters Trust Funds v. Stone, 794 F.2d 508 (9 th Cir. 1986)....... 20 Herrington v. County of Sonoma, 12 F.3d 901, (9 th Cir. 1993)............... 7 Hibbs v. Winn, 542 U.S. 88 (2004)................................. 13,46 Holcombe v. Hosmer, 477 F.3d 1094 (9 th Cir. 2007)...................... 25 In re Sanford Fork & Tool Co., 160 U.S. 247 (1895)...................... 10 Klapprott v. United States, 335 U.S. 601 (1949).................... 21,22,32 Landreth v. C.I.R., 845 F.2d 828 (9 th Cir. 1988).......................... 13 Leslie Salt Co. v. United States, 55 F.3d 1388 (9 th Cir. 1995)....... 8,9,23,24,36 Leslie Salt Co. v. United States, 896 F.2d 354 (9 th Cir. 1990), cert. denied, 496 U.S. 1126 (1991)................................................... 8 Leslie Salt Co. v. United States, 700 F.Supp. 476 (N.D.Cal. 1989)............ 8 Liberty Mutual Insurance Co. v. E.E.O.C., 691 F.2d 438 (9 th Cir. 1982)............................................ 6,7-8,9,10,47 Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988)........ 21 Maag v. Wessler, 993 F.2d 718 (9 th Cir. 1993)............................ 7 Matter of Beverly Hills Bancorp, 752 F.2d 1334 (9 th Cir. 1984)..... 8,9,10,11,17 McInerney v. Tang, 5 F.3d 537 (9 th Cir. 1993), 1993 WL 312763............ 13 Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703 (9 th Cir. 1990) 7 Missouri v. Jenkins, 495 U.S. 33 (1990)............................... 12 Moore v. Jas. H. Matthews & Co., 682 F.2d 830 (9 th Cir. 1982)...... 8,10,13,14 iii

Case: 08-35794 11/04/2008 Page: 5 of 60 DktEntry: 6696470 Nguyen v. United States, 792 F.2d 1500 (9 th Cir. 1986).................. 7,11 Old Person v. Brown, 312 F.3d 1036, 1039 (9 th Cir. 2002)................ 6,8 Pioche Mines Consolidated v. Foley, 237 F.2d 164 (9 th Cir. 1956)........... 14 Pubali Bank v. City Natl. Bank, 777 F.2d 1340 (9 th Cir. 1985).............. 13 Quern v. Jordan, 440 U.S. 332 (1979)............................... 8,14 Samish Indian Tribe v. Washington, 394 F.3d 1152 (9 th Cir. 2005).................. 1,2,6,15,16,17,18,19,20,23,24,28,29,30,31,38 Samish Indian Nation v. United States, 419 F.3d 1355 (Fed. Cir. 2005). 30-31,46 Scola v. Boat Frances, R., Inc., 618 F.2d 147 (1 st Cir. 1980)............. 24,46 Sierra Club v. Penfold, 857 F.2d 1307, (9 th Cir. 1988)...................... 7 United States v. Alpine Land & Reservoir Co., 984 F.2d 1047 (9 th Cir. 1993)................................................ 16,22,36 United States v. Colvin, 204 F.3d 1221 (9 th Cir. 2000).................... 6,8 United States v. Cote, 51 F.3d 178 (9 th Cir. 1995)........................ 12 United States v. Washington, 476 F.Supp. 1101 (W.D. Wash. 1979), aff d 641 F.2d 1368 (9 th Cir. 1981), cert. denied, 454 U.S. 1143 (Washington II).... 1,2,23 Wokan v. Alladin International, Inc., 485 F.2d 1232 (3d Cir. 1973).......... 20 Statutes and Court Rules 28 U.S.C. 1291................................................ 1,46 Circuit Rule 36-3.................................................. 13 iv

Case: 08-35794 11/04/2008 Page: 6 of 60 DktEntry: 6696470 FRAP 4(a)(1)...................................................... 1 FRAP 40(a)...................................................... 12 FRCP 7(a)........................................................ 7 FRCP 7(b)........................................................ 7 FRCP 15....................................................... 7,11 FRCP 60(a)................................................... 46,47 FRCP 60(b)...................................................... 21 FRCP 60(b)(6)................................................ passim FRCP 60(c)...................................................... 21 Other Authorities 25 C.F.R. 83.7................................................ 29,30 25 C.F.R. 83.7(b)............................................ 30,44 25 C.F.R. 83.7(c)............................................ 30,44 25 C.F.R. 83.7(e)............................................. 42,44 25 C.F.R. 83.12................................................. 30 25 C.F.R. 89.40.................................................. 33 25 C.F.R. 89.41.................................................. 34 25 C.F.R. 89.41(a)............................................... 34 v

Case: 08-35794 11/04/2008 Page: 7 of 60 DktEntry: 6696470 25 C.F.R. 292.7.................................................. 31 25 C.F.R. 292.12 (b).............................................. 31 25 C.F.R. 2719.................................................. 31 61 Federal Register 15825 (April 9, 1996).............................. 27 61 Federal Register 26922 (May 29, 1996)............................. 27 66 Federal Register 18553 (April 4, 2008).............................. 29 Final Determination to Acknowledge the SAmish Tribal Organization as a Tribe, Nov. 8, 1995, Bureau of Indian Affairs, U.S. Dept. of the Interior........... 27 Pub.L.No. 109-479, 120 Stat. 3575, Jan. 12, 2007........................ 20 Samish Indian Tribe v. Babbitt, Docket No. Indian 93-1, Office of Hearings and Appeals, U.S. Department of Interior............................... 26-27 Webster s Ninth New Collegiate Dictionary (1986 ed.).................... 42 vi

Case: 08-35794 11/04/2008 Page: 8 of 60 DktEntry: 6696470 STATEMENT REGARDING ORAL ARGUMENT Appellant requests oral argument. STATEMENT OF JURISDICTION Appellant had a judgment entered against it in United States v. Washington, 476 F.Supp. 1101 (W.D.Wash. 1979), aff d, 641 F.2d 1368 (9 th Cir. 1981), cert. denied, 454 U.S. 1143 (Washington II). Appellant filed a Rule 60(b)(6) motion to vacate this judgment in 2001. The district court entered judgment denying Appellant s motion on September 2, 2008. Jurisdiction exists in the Court of Appeals pursuant to 28 U.S.C. 1291. Notice of appeal was filed on September 18, 2008, within sixty days of entry of the district court s judgment, FRAP 4(a)(1); the United States is a party. STATEMENT OF ISSUES 1. Did the district court violate the law of the case and law of the circuit doctrines by addressing and deciding issues which had been decided before by the Court in Samish Indian Tribe v. Washington, 394 F.3d 1152 (9 th Cir. 2005), cert. denied, 546 U.S. 1090 (2006)( Samish )(Opinion attached at ER 72-89)? 2. Did the district court abuse its discretion and commit errors of law by denying the Samish Tribe s Rule 60(b)(6) motion? 1

Case: 08-35794 11/04/2008 Page: 9 of 60 DktEntry: 6696470 3. Did the district court abuse its discretion by reaching clearly erroneous findings of fact reached under the wrong legal standard? STATEMENT OF CASE The Samish Tribe was denied treaty status in Washington II. The United States said during that proceeding that the Samish Tribe was an unrecognized tribe. 476 F.Supp. at 1106. The federal government and several tribes represented that if the Samish Tribe successfully achieved federal recognition under its pending administrative acknowledgment petition, it might merit reexamination of the Samish Tribe s treaty status. Samish, 394 F.3d at 1155. The Samish Tribe originally petitioned for federal acknowledgment in 1972. Greene v. Babbitt, 943 F.Supp. 1278, 1281 (W.D. Wash. 1996)(No. C89-645Z, Greene ). 1 Samish successfully achieved final federal recognition on November 1, 1996. Greene, Dkt. # 330, ER 778-79 (Judgment). The Samish Tribe initiated Subproceeding 01-02 in U.S. v. Washington on December 14, 2001, by filing a Rule 60(b)(6) motion to vacate the judgment against the Tribe in Washington II. Dkt. # 1. The district court denied the Samish Tribe s refiled Rule 60(b)(6) motion on 1 Appellant refers to pleadings from three separate proceedings in this brief: the sub-proceeding of U.S. v. Washington where Samish filed its 60(b)(6) motion in 2002; the Ninth Circuit review (2003-2005) of that motion; and Samish recognition litigation in Greene v. Babbitt. Appellant will refer to docket numbers of pleadings from these three proceedings. Pleadings from the subproceeding will be referenced just by a docket number; from the Ninth Circuit s 2005 review of this case as Samish, Dkt #, and from Greene v. Babbitt as Greene, Dkt.#. 2

Case: 08-35794 11/04/2008 Page: 10 of 60 DktEntry: 6696470 December 19, 2002. Order, Dkt. # 68, ER 48-67, on the basis that Samish federal recognition was not an extraordinary circumstance justifying the motion, and that finality concerns were an equally compelling factor weighing against reopening. Samish, 394 F.3d at 1156. The Samish Tribe filed a motion for reconsideration. Dkt. # 69, ER 549-55. The district court upheld its previous decision, holding that Samish federal acknowledgment was not an extraordinary circumstance and that finality concerns controlled. Order Denying Motion for Reconsideration, Feb. 7, 2003, Dkt. # 75, ER 42-47. The Ninth Circuit Court of Appeals reversed and remanded Judge Rothstein s decisions. Samish, (No. 03-35145), petition for rehearing and rehearing en banc denied, June 6, 2005, Dkt. # 82, ER 69-70, cert. denied, 546 U.S. 1090 (2006). See Dkt. # 46 ( Terminated on the Merits after Oral Hearing; Reversed; Written, Signed, Published ). The majority decision concluded: As the Samish s lack of recognition was a circumstance beyond the tribe s control, their subsequent recognition is an extraordinary circumstance that warrants setting aside the judgment in Washington II. 394 F.3d at 1161. With regard to finality, the Court concluded that finality concerns do not independently support the district court s denial of the Samish s Rule 60(b)(6) motion. Id. On remand, the district court, Judge Martinez presiding, re-noted the Samish Tribe s Rule 60(b)(6) motion and established a briefing schedule. Order on Remand, July 15, 2005, Dkt. # 133. No specific issues were identified. The Samish Tribe argued that the district court must grant the Tribe s Rule 60(b)(6) 3

Case: 08-35794 11/04/2008 Page: 11 of 60 DktEntry: 6696470 motion on remand. Brief of Samish Indian Nation on Remand, Aug. 12, 2005, Dkt. # 137, ER 515-48. Proceedings were delayed while Opposition Tribes petitioned the United States Supreme Court for certiorari, see Order, Aug. 29, 2005, Dkt. # 140, ER 37, which was denied. Five Opposition tribes then filed a motion for a new scheduling order. Treaty Tribes Motion for New Scheduling Order, Jan. 19, 2006, Dkt. # 147, ER 501-14. The five tribes argued: [t]wo major 60(b)(6) issues were not resolved by either this Court or the Ninth Circuit: 1) whether the Samish motion was timely; and 2) whether Samish s inequitable behavior requires denial of its motion. A motion to reopen must be filed within a reasonable time. Rule 60(b). Furthermore, under Rule 60(b), a court may always consider whether the moving party has acted equitably. (Citations omitted). Id., p. 5. The Samish Tribe opposed the motion. Response by Samish Indian Nation, Jan. 27, 2006, Dkt. # 154-1, ER 489-500. The court granted the motion: (2) The Court notes that issues of timeliness and equitable considerations raised previously by the Treaty Tribes have not yet been addressed. The Court declines to find, as the Samish Tribe urges, that the Ninth Circuit Court of Appeals denial of rehearing en banc constituted a ruling on the merits of these issues. They therefore remain at issue, such that a period of discovery is necessary. Order, Feb. 28, 2006, Dkt. # 158, ER 35-36. Eight months later, just before oral argument, four opposition tribes filed motions in the closed Greene case, one pursuant to Rule 60(b)(6) and another for immediate relief, seeking to reopen the case and overturn the decision to 4

Case: 08-35794 11/04/2008 Page: 12 of 60 DktEntry: 6696470 acknowledge the Samish Indian Tribe as a tribe. 2 Treaty Tribes filed a motion to stay the Samish Tribe s Rule 60(b)(6) motion in U.S. v. Washington. Motion, Oct. 5, 2006, Dkt. # 265. The district court granted the motion: The merits of the motions before Judge Zilly cannot be addressed by this Court. However, the Court finds that regardless of how Judge Zilly rules, a decision in Greene may have a significant impact on the issues before the Court in this subproceeding. It is in the interest of justice, and of judicial economy, to await a decision in Greene before proceeding further in this matter. Order, Nov. 8, 2006, Dkt. # 279, ER 33-34. On January 26, 2007, the court in Greene dismissed Treaty Tribes motions in that case based on lack of subject matter jurisdiction and sovereign immunity. Order, Dkt. # 365, ER 773-77. Treaty Tribes did not appeal this decision. Instead, the stay in Subproceeding 01-02 was lifted and further briefing occurred. Order, April 2, 2007, Dkt. # 299. The district court issued a decision denying the Samish Tribe s Rule 60(b)(6) Motion on September 2, 2008. Dkt. # 329, ER 4-30, and entered Judgment, Dkt. # 330. On the two issues raised on remand by Opposition Tribes, the court held that the Samish Tribe did not file its Rule 60(b) motion within a reasonable time and that the Samish Tribe had engaged in inequitable conduct 2 Treaty Tribes Motion for Immediate Relief from Post-Recognition Judgment and Order, Oct. 5, 2006, Greene, Dkt. # 346; Motion for Relief from Judgment and Orders Under Fed.R.Civ.P. 60(b), Oct. 5, 2006, Dkt. # 345. These two motions were attached as Exhibits to Dkt. # 266 in the subproceeding. The Ninth Circuit has rendered two decisions in the Greene proceedings. Greene v. United States, 996 F.2d 973 (9 th Cir. 1993)( Greene I ); Greene v. Babbitt, 64 F.3d 1266 (9th Cir. 1995)( Greene II ). 5

Case: 08-35794 11/04/2008 Page: 13 of 60 DktEntry: 6696470 sufficient to deny the Tribe s motion. The district court also revisited the Ninth Circuit s rulings in Samish on extraordinary circumstances and finality concerns and declined to follow them. STANDARD OF REVIEW The Ninth Circuit reviews denial of a Rule 60(b)(6) motion for abuse of discretion. Under this standard, the Court must affirm the judgment below unless (1) the Court has a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon weighing the relevant factors, (2), the district court applied the wrong law, or (3) the district court rested its decision on clearly erroneous findings of material fact. Samish, 394 F.3d at 1157; Old Person v. Brown, 312 F.3d 1036, 1039 (9 th Cir. 2002). A district court s interpretation of an appellate mandate is subject to appeal. United States v. Colvin, 204 F.3d 1221, 1225 (9 th Cir. 2000), as error of law. Liberty Mut. Ins. Co. v. E.E.O.C., 691 F.2d 438, 440 (9 th Cir. 1982). SUMMARY OF THE ARGUMENT The district court s decision violates the law of the case and law of the circuit doctrines. The issues found by the district court as reasons to deny the Samish Rule 60(b)(6) motion on remand have been decided by this Court. The district court was precluded from revisiting these issues on remand. Treaty Tribes were prohibited by claim preclusion principles from raising these issues on remand. The district court applied the wrong law in reviewing the issues of timeliness and equitable considerations, and its factual conclusions on these issues 6

Case: 08-35794 11/04/2008 Page: 14 of 60 DktEntry: 6696470 were clearly erroneous and based on an incorrect legal standard. ARGUMENT A. Controlling Law. The Samish Tribe first addresses precedent addressing law of the case and when an issue has previously been expressly or implicitly decided such that it cannot be revisited by the district court. Much of the case law involves subsequent attempts to amend a complaint on remand pursuant to FRCP 15, while the present case involves litigation of a motion. 3 Under the law of the case doctrine, a court may not revisit an issue that has been decided expressly or implicitly in a previous phase of a case. Herrington v. County of Sonoma, 12 F.3d 901, 904 (9 th Cir. 1993)( The law of the case doctrine states that the decision of an appellate court must be followed in all subsequent proceedings in the same case, quoting Maag v. Wessler, 993 F.2d 718, 720 n. 2 (9 th Cir. 1993)). For the doctrine to apply, the issue in question must have been decided explicitly or by necessary implication in [the] previous disposition. Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9 th Cir. 1990)(quoting Liberty Mutual Ins. Co. v. E.E.O.C., 691 F.2d 438, 441 (9 th Cir. 3 See Sierra Club v. Penfold, 857 F.2d 1307, 1311-12 (9 th Cir. 1988) (amendment of pleadings); Nguyen v. United States, 792 F.2d 1500, 1503 (9 th Cir. 1986)(same). Treaty Tribes Motion for New Scheduling Order, Dkt. # 147, p. 6, ER 501. See FRCP 7(a) (defining pleadings to mean complaint and responsive pleadings; 7(b)(distinguishing motions and other submissions). 7

Case: 08-35794 11/04/2008 Page: 15 of 60 DktEntry: 6696470 1982)); Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1337 (9 th Cir. 1984). Law of the circuit preclusion is even broader. Old Person, supra, 312 F.3d at 1039. It is not always easy to discern when an issue has been decided. 4 Sometimes the appellate court announces an alternative ground for decision. Dragor Shipping Corp. v. Tak Can Co., 37 F.2d 722, 726 (9 th Cir. 1967). 5 In other cases an issue is briefed and argued in a case but not specifically referenced in the appellate decision. Several cases have addressed whether an issue has been implicitly decided by a court. In Leslie Salt Co. v. United States, 55 F.3d 1388 (9 th Cir. 1995)(Leslie Salt III), the Ninth Circuit addressed whether its previous decision upholding a federal rule precluded additional consideration of whether that rule was procedurally and substantively defective. In Leslie Salt I, the district court held that the Clean Water Act did not apply to ponds used by migratory birds where the ponds appeared only on a seasonal, temporary basis. Leslie Salt Co. v. United States, 700 F.Supp. 476 (N.D.Cal. 1989). On appeal the Ninth Circuit reversed and remanded after finding that the preamble to federal regulations was a rule that applied the Act to such ponds. Leslie Salt Co. v. United States, 896 F.2d 354 (9 th Cir. 1990), cert. denied, 496 U.S. 1126 (1991)(Leslie Salt II). On remand, the rule 4 See United States v. Colvin, 204 F3d 1221, 1225 (9 th Cir. 2000). 5 Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 834 (9 th Cir. 1982) ( [T]he district court s alternative grounds for rejecting the installation tying claim were not among the matters left open by the mandate of this court. Quern v. Jordan, 440 U.S. 332, 347 (1979). ). 8

Case: 08-35794 11/04/2008 Page: 16 of 60 DktEntry: 6696470 was challenged on other substantive and procedural grounds, but the challenge was rejected under law of the case. The Ninth Circuit affirmed: The Leslie Salt II court did not expressly address this claim in its opinion. However, the briefs and other materials submitted to that court reveal that it was aware of both the arguments and the cases relied upon by Cargill. The law of the case applies to issues decided explicitly or by necessary implication in this court s previous disposition. Hanna Boys Ctr, 853 F.2d at 685 (quoting Liberty Mutual Ins. Co. v. E.E.O.C., 691 F.2d 438, 441 (9 th Cir. 1982)). By holding that use by migratory birds could form a sufficient connection to interstate commerce to support jurisdiction, the Leslie Salt II court implicitly rejected all arguments that the rule is invalid for procedural reasons under the Administrative Procedures Act. Leslie Salt III, 55 F.3d at 1393 (emphasis added). 6 See id. at 1392, 1396; Adamian v. Lombardi, 608 F.2d 1224, 1228 (9 th Cir. 1979), cert. denied, 446 U.S. 938 (1980); Hanna Boys Center v. Miller, 853 F.2d 682, 685 (9 th Cir. 1988)( [Because] a court of appeals may rely on any ground fairly supported by the record, [and because the record before the court of appeals contained] materials [whose focus] was the issue of the district court s jurisdiction[,] the motions panel must have rejected the Center s third argument... that the district court lacked subject matter jurisdiction. ). In the Matter of Beverly Hills Bancorp, 752 F.2d 1334 (9 th Cir. 1984), is on point. A bankruptcy court s decision was reversed and remanded with instructions 6 The Leslie Salt III Court also rejected arguments that summary decisions without much discussion should not be followed as the law of the case. 55 F.3d at 1392-93. 9

Case: 08-35794 11/04/2008 Page: 17 of 60 DktEntry: 6696470 to address one remaining issue. 752 F.2d at 1336. The bankruptcy trustee had petitioned the Court in rehearing for permission to amend pleadings to raise additional issues, but was denied. Id. The lower court allowed the bank trustee to amend the complaint over strong objection of the opposing party and held a trial. At the end of the trial, the bankruptcy court entered judgment in a manner that reverse[d] essentially every issue previously determined in favor of the CPH by this court. Id. at 1336-37. The Ninth Circuit reversed the actions of the lower court: The Supreme Court long ago emphasized that when acting under an appellate court s mandate, an inferior court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided upon appeal; or intermeddle with it, further than to settle so much as has been remanded. In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895). Id. at 1337. The Court rejected the argument that since Court s mandate had not specifically foreclosed amendment to raise new theories, such amendment was allowed: On remand, a trial court cannot consider issues decided explicitly or by necessary implication. Liberty Mutual Insurance Co. v. EEOC, 691 F.2d 438, 441 (9 th Cir. 1982). The bankruptcy court held that our mandate did not foreclose reconsideration of reformation. Its interpretation of our mandate, however, particularly in light of our denial of the Trustee s petition for rehearing or clarification, was erroneous. E.g., Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 833-34 (9 th Cir. 1982). The only issue remaining on remand was our direction to interpret interest earned,... [b]y necessary implication, this foreclosed a trial on an entirely new theory of recovery. 10

Case: 08-35794 11/04/2008 Page: 18 of 60 DktEntry: 6696470 Id. at 1337-38. The Court held that consideration of new theories on remand was contrary to basic judicial principles: Even if our mandate and denial of the Trustee s petition for rehearing or clarification were sufficiently ambiguous to permit the bankruptcy court to entertain a motion to amend the pleadings, the amendment sought in this case would be inappropriate. The general rule that leave to amend under rule 15 should be freely granted (citation omitted) will not be extended without limit when a rule 15 motion is brought after a claim has been fully litigated on the merits through appeal. At some point there must be finality. Permitting amendment in this case would not enhance finality, but instead would encourage seriatum judgments in the same basic dispute, as a plaintiff continues to put forth new theories of recovery.... Only after [plaintiff s] interpretation was rejected by this court did he turn to a request for reformation. A clearer example of an attempt to bring seriatum claims over the same issue cannot be found. Allowing the Trustee to do so would allow him to obtain a tactical advantage to which he is not entitled.... More than three years have past [sic] since we issued our mandate. The CPH have been forced to litigate a five week trial and this appeal. Yet our mandate remains unfollowed. Id. at 1338. 7 In Dias v. Bank of Hawaii, 764 F.2d 1292, 1295 (9 th Cir. 1985), the Court held that since under Rule 60(b) the district court is required to make sufficient findings of fact on all relevant Rule 60(b) considerations, if sufficient findings are not contained in the record on any issue, the matter should be remanded for 7 Beverly Hills Bancorp involved amendment of a pleading and FRCP 15, which allows liberal amendment thereof. See, e.g., Nguyen v. United States, 792 F.2d 1500, 1503 (9 th Cir. 1986). As noted above, see n.3, supra, motions are not subject to this rule. 11

Case: 08-35794 11/04/2008 Page: 19 of 60 DktEntry: 6696470 development of additional facts and issues: We cannot properly evaluate the merits of the decision..., however, because the district judge failed to make findings of fact to support his decision.... [S]uch findings are... essential to a proper review of the variety of factors considered in a Rule 60(b) motion for relief from judgment. The rule contemplates consideration by the trial court of the competing equities, of the strengths and weaknesses of the parties positions, and of the imposition of conditions for relief from judgment. It contemplates that an appeal will come before us with a record reflecting those considerations. 792 F.2d at 1294-95 (quoting Halderman v. Pennhurst State School & Hospital, 673 F.2d 628, 637 (3d Cir. 1982)(en banc), cert. denied, 465 U.S. 1038 (1984)). The Dias Court remanded the case to weigh the applicable factual and policy considerations. 792 F.2d at 1295. If a Rule 60(b) case is not remanded, it means that the Court found that all relevant issues were adequately addressed. Case law has also addressed law of the case in the context of denial of a petition for rehearing. If a petition for rehearing or rehearing en banc is denied, and the denial is based on review of the petition(s) (and an answer, if requested by the Court), 8 it is treated as a decision on the merits on issues raised in the petition: A petition for rehearing is designed to bring to the panel s attention points of law or fact that it may have overlooked. Fed.Rule App. Proc. 40(a). The panel is required to consider the contentions in the petition for rehearing, if only to reject them. Missouri v. Jenkins, 495 U.S. 33, 47 n. 14 (1990). In Gould v. Mutual Life Ins. 8 See United States v. Cote, 51 F.3d 178, 181 (9 th Cir. 1995)( summary denial of a petition for rehearing is not decision on issue presented only in a footnote). 12

Case: 08-35794 11/04/2008 Page: 20 of 60 DktEntry: 6696470 Co. of New York, 790 F.2d 769, 774-75 (9 th Cir. 1986), this Court held: In Gould s initial appeal, we considered, albeit on a petition for rehearing and suggestion for rehearing en banc, whether the district court lacked subject matter jurisdiction and rejected the contention by denying rehearing. Under the law of the case doctrine a decision of a legal issue or issues by an appellate court must be followed in all subsequent proceedings in the same case... unless the evidence in a subsequent trial [is] substantially different. Pubali Bank v. City Natl. Bank, 777 F.2d 1340 (9 th Cir. 1985)(quoting Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 834 (9 th Cir. 1982). Gould has shown nothing to justify the district court s ignoring the implication, arising from the denial of rehearing, that it was bound by this determination that its exercise of jurisdiction was proper. 9 The same conclusion was reached in Landreth v. C.I.R., 845 F.2d 828, 833 (9 th Cir. 1988): While we appreciate the significance of the 1986 amendments to section 108, we are not free to use them as a reason for disregarding Wehrly. The record in Wehrly establishes that the panel considered the 1986 amendments. The government presented the Wehrly panel with the 1986 amendments and the legislative history in a memorandum in support of its petition for rehearing, but the panel nonetheless denied the petition without amending its opinion. Thus, although Wehrly does not discuss the 1986 amendments, the panel considered them. The denial of the petition for rehearing necessarily embodies an implicit holding reject the government s argument with respect to the amendments. 9 This holding was followed in an unpublished Ninth Circuit decision, McInerney v. Tang, 5 F.3d 537 (9 th Cir. 1993), 1993 WL 312763 ( Because we rejected that challenge by denying the petition for rehearing, the bankruptcy court had no power to consider the issue. ). Circuit Rule 36-3 (unpublished dispositions binding when relevant under the doctrine of the law of the case). See Hibbs v. Winn, 542 U.S. 88, 98 (2004). 13

Case: 08-35794 11/04/2008 Page: 21 of 60 DktEntry: 6696470 See Moore v. Jas. H. Matthews & Co., supra, where the Court amended its original remand language to allow for some additional proceedings on remand, 682 F.2d at 834: In Moore II, we vacated the judgment against EGM on the tie-in claims, and originally remanded the case for further proceedings consistent with this opinion. In denying the cemeteries petition for rehearing and rehearing en banc, however, the court amended the remand language to read: the case is remanded for further proceedings and factual determinations consistent with the standards articulated in this opinion. 550 F.2d at 1220.... The district court s interpretation of our remand was erroneous and its disposition of the installation tying claim was directly contrary to Moore II....The only issues left for determination by Moore II were on damages, attorney fees, and, as indicated in note 4, infra, the ties effect on interstate commerce in the tied market. 10 B. Discussion of Specific Rulings of the District Court Denying the Samish Tribe s Rule 60(b)(6) Motion. The district court on remand, Dkt. # 329, ER 4-30, denied the Samish Tribe s Rule 60(b)(6) motion on four separate grounds: (1) that federal recognition 10 See Quern v. Jordan, 440 U.S. 332, 348 n.18 (1979)(Court, discussing Edelman v. Jordan, 415 U.S. 651, 655 (1974), where the Court had addressed the constitutionality only of the relief before it and remanded the matter for further proceedings consistent with this opinion, allowed only some additional notice as relief, as not inconsistent with either the spirit or express terms of our decision in Edelman. Id.); Pioche Mines Consolidated v. Foley, 237 F.2d 164,165 (9 th Cir. 1956)( Our mandate commanded that proceedings be had in said case, in conformity with the opinion and judgment of this court. Clearly, we intended that Fidelity file no more complaints, however, denominated, in this action. ). 14

Case: 08-35794 11/04/2008 Page: 22 of 60 DktEntry: 6696470 of the Samish Tribe was not an extraordinary circumstance sufficient to justify granting the Samish Tribe s Rule 60(b) motion, Order at 9-12; (2) that finality concerns were not speculative and that the Samish Tribe had a full and fair opportunity to litigate its treaty status in U.S. v. Washington, Order at 24-26; (3) that the Samish Tribe s Rule 60(b)(6) motion was not timely filed after Samish recognition, Order at 12-15; and (4) that the Samish Tribe engaged in inequitable conduct in the manner in which it sought in Greene to reinstate findings improperly removed from its initial administrative recommended acknowledgment decision, Order at 15-24. Opinion, ER 12-29. The first two rulings by the district court conflict directly with the express rulings of the Ninth Circuit in Samish, 394 F.3d 1152. The district court erroneously held that the third and fourth issues had been previously raised but not addressed by the district court, and therefore had not been foreclosed by the Ninth Circuit s ruling in Samish. Each ground will be discussed in turn. a. Extraordinary Circumstances. Judge Rothstein s 2002 order denying the Samish Tribe s Rule 60(b)(6) motion in U.S. v. Washington concluded that the Samish Tribe s 1996 recognition is not an extraordinary circumstance that justifies reopening the judgment in Washington II. Order, p. 16, Dkt. # 68, ER 48-67. The court held that Samish federal recognition has no impact on whether it may exercise treaty rights because the Ninth Circuit has repeatedly held that treaty rights and federal recognition were fundamentally different. Id., pp. 11, 13. Additionally, it held that 15

Case: 08-35794 11/04/2008 Page: 23 of 60 DktEntry: 6696470 extraordinary circumstances did not exist because Samish treaty status had been fully litigated in U.S. v. Washington, and Samish had alleged no flaws in those proceedings. Id., pp. 11-15. 11 Opposition Tribes relied on these rulings by Judge Rothstein when the Samish Tribe appealed those rulings to the Ninth Circuit. Samish Indian Tribe v. Washington, No. 03-35145, Tribal Appellees Brief, Dkt. # 20, pp. 17-30, ER 754-67; Answering Brief for the United States, pp. 21-35, Samish, Dkt. # 21, ER 732-45. The Court expressly rejected these arguments in Samish. E.g., 394 F.3d at 1159 ( the Opposition Tribes argue that... the Samish had a full opportunity to present the facts supporting its treaty status to the district court in Washington II, and therefore extraordinary circumstances do not exist because Rule 60(b)(6) is only to be utilized... to prevent or correct an erroneous judgment. (quoting United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9 th Cir. 1993)... [W]e conclude that the Samish were effectively prevented from proving their tribal status in a proper fashion. Samish, 394 F. 3d at 1159 (quoting Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9 th Cir. 2002)). Similarly, the Court expressly rejected Judge Rothstein s conclusion that a tribe s federal recognition or non-recognition has no impact on whether that tribe can exercise treaty rights. 394 F.3d at 1157-58. The Court concluded that Samish federal recognition was an extraordinary circumstance that warrants setting aside 11 In the Order that is the subject of this appeal, Judge Martinez repeated these reasons, but under the subject of finality. Dkt. # 329, pp. 25-26. 16

Case: 08-35794 11/04/2008 Page: 24 of 60 DktEntry: 6696470 the judgment in Washington II. 394 F.3d at 1161. Treaty Tribes and the United States repeated the same arguments and cases in their petitions for rehearing and rehearing en banc. Samish, Dkt. # 59 (Seven tribes), pp. 2-14, ER 715-27; Samish, Dkt. # 60(Lummi and Swinomish), pp. 10-17, ER 706-13; Samish, Dkt. # 61 (U.S.), pp. 8-15, ER 694-701. The Court fully considered these petitions and asked the Samish Tribe to respond to these petitions and two tribal amicus briefs. Order, Samish, Dkt. # 67; Samish, Dkt. # 80, ER 689-91. After the Ninth Circuit denied rehearing and rehearing en banc, Dkt. # 82, ER 69-70, see Dkt. # 83 (Mandate), Opposition Tribes petitioned the United States Supreme Court for certiorari, and made the arguments again in that forum. Lummi Nation v. Samish Indian Tribe, No. 05-445, Petition for a Writ of Certiorari, pp. 5-6, 9-13, 17-19. That petition was denied. 546 U.S. 1090 (2006). There can be no dispute that the Ninth Circuit explicitly decided the issue of extraordinary circumstances for purposes of Rule 60(b)(6) in the Samish Tribe s favor, 12 and explicitly rejected the reasoning of Judge Rothstein in denying that motion. 13 As such, this decision is controlled by the law of the case doctrine, and the district court is not permitted to review, reappraise, or clarify the issue further even if it believes the appellate court s decision was erroneous. Beverly Hills Bancorp, supra, 752 F.2d at 1337; Firth v. United States, 554 F.2d 990, 993 and n. 12 By denying Treaty Tribes petitions for rehearing and rehearing en banc, the Ninth Circuit also implicitly rejected this reasoning. See pp. 12-13, supra. 13 Opposition Tribes conceded that the Ninth Circuit decided this issue. Dkt. # 147, p. 4, ER 504. 17

Case: 08-35794 11/04/2008 Page: 25 of 60 DktEntry: 6696470 4 (9 th Cir. 1977). The district court ruled on remand that the Tribe s extraordinary circumstances did not justify Rule 60(b)(6) relief. Dkt. # 329, p. 9-12. Judge Martinez s ruling on extraordinary circumstances is in direct conflict with the Ninth Circuit s ruling in Samish, see 394 F.3d at 1157-61, and violates the law of the case and law of the circuit doctrines. It is an error of law and warrants reversal. The same result occurs with regard to the district court s finality ruling that because Samish had a full and fair opportunity to litigate its treaty status in the 1970s, with no flaw in the process, Samish does not meet the standard to have its Rule 60(b)(6) motion granted. Dkt. # 329, pp. 25-26. This reasoning was expressly rejected by the Ninth Circuit in Samish. 394 F.3d at 1159. The Court in Samish found that extraordinary circumstances effectively prevented [the Samish] from proving their tribal status in a proper fashion. Id. 14 The district court s ruling on this issue is in direct conflict with the Court s ruling in Samish and violates law of the case and circuit doctrines, warranting reversal. b. Finality Concerns. Judge Rothstein found in 2002 that finality concerns were an equally compelling factor in denying the Samish Tribe s Rule 60(b)(6) motion. Dkt. # 68, pp. 16-18, ER 63-65. Judge Rothstein reiterated this conclusion in denying the 14 The Court relied in particular on representations during Washington II that if Samish successfully achieved federal recognition, its treaty status should be reexamined. 394 F.3d at 1155 n.4. Judge Martinez ignored this critical factual conclusion on remand. 18

Case: 08-35794 11/04/2008 Page: 26 of 60 DktEntry: 6696470 Samish Tribe s Motion for Reconsideration. Dkt. # 75, pp. 3-4, ER 44-45. Opposition Tribes and the United States emphasized finality concerns in their appellate briefs and in petitions for rehearing and rehearing en banc. Samish, Dkt. # 20 (tribes), pp. 30-32, ER 767-69; Samish, Dkt # 21 (U.S.), pp. 35-40, ER 746-51; Samish, Dkt. # 59 (seven tribes), pp. 14-16, ER 727-29; Samish, Dkt. # 60(Lummi and Swinomish), pp. 6, 8-10, ER 703-06. The Ninth Circuit rejected these finality arguments. It found that finality concerns do not independently support the district court s denial of the Samish s Rule 60(b)(6) motion, and concluded that the somewhat speculative concerns about finality are insufficient to have carried the day. Samish, 394 F.3d at 1161. Opposition Tribes conceded on remand that this issue had been decided by the Ninth Circuit. Dkt. # 147, p. 4, ER 504. The district court on remand raised finality concerns again on its own initiative and concluded that finality concerns justified denial of the Samish Tribe s motion. Order, Dkt. # 329, pp. 24-26. This conclusion is in direct conflict with the Ninth Circuit s ruling on finality. It violates law of the case and circuit doctrines, is an error of law, and warrants reversal of the District Court s ruling on this issue. 15 15 Judge Martinez attempted to characterize the finality issue as different on remand because of a finality proposal that the Samish Tribe had presented to the district court in January 2003 in the previous phase of the case. Order, Dkt. # 329, p. 24; see Samish Motion for Reconsideration, Jan. 7, 2003, Dkt. # 69, ER 549-55. The court asserted that the Ninth Circuit in Samish ruled in favor of the Samish Tribe on finality only in light of this proposal. Order, Dkt. # 19

Case: 08-35794 11/04/2008 Page: 27 of 60 DktEntry: 6696470 One last matter remains to be addressed under the subject of finality. The District Court refers to the so-called shellfish subproceeding (Subproceeding 89-3) as a real matter that would be put at risk if the Samish Tribe were allowed to reenter U.S. v. Washington. Order, Dkt. # 329, p. 26. This subproceeding actually supports Samish reentry into the case, without disruption. Subproceeding 89-3 was recently settled. See Consent Decree, June 21, 2007, Dkt. # 18844. As part of that settlement, the United States Congress appropriated $22 million for payment of Tribes treaty claims, to be divided among treaty tribes. Pub.L. No. 109-479, 120 Stat. 3575, 3649-52, Jan. 12, 2007, 702. Samish successfully added language to this legislation providing for an additional $1.5 million settlement fund for other tribes that might subsequently establish treaty status, to be disbursed only if they agree to be bound by U.S. v. Washington and the Shellfish Settlement Agreement. Id., 702(a)(1)(H), 702 (a)(2)(b), 702( c)(2), 702(e), 702(g)(3). Granting the Samish Tribe s Rule 60(b)(6) motion and allowing 329, p. 24. This is not what the Ninth Circuit ruled in Samish; it found finality concerns speculative based on a number of factors. 394 F. 2d at 1162. On remand of this case, the district court, after granting Samish s Rule 60(b)(6) motion, should have addressed the process for allowing the Samish Tribe to reenter U.S. v. Washington. The next step would be to address what conditions to impose on the Samish Tribe s reentry. Under Rule 60(b) a court shall relieve a party from a final judgment on motion and just terms, meaning the court may impose reasonable conditions. Hawaii Carpenters Trust Funds v. Stone, 794 F.2d 508, 512-13 (9 th Cir. 1986)(citing Wokan v. Alladin International, Inc., 485 F.2d 1232, 1234 (3d Cir. 1973)). See Dkt. # 147, p. 2, ER 502. The Samish Tribe has discussed conditions that might apply to its reentry into the case. Dkt. # 40, pp. 39-40; Dkt. # 137, pp. 19-29, ER 537-47; Dkt. # 236, pp. 19-20, ER 484-85. 20

Case: 08-35794 11/04/2008 Page: 28 of 60 DktEntry: 6696470 Samish to reenter U.S. v. Washington would fit seamlessly into the shellfish settlement. The district court s finality concerns ruling violates law of the case and law of the circuit doctrines and is therefore an error of law. c. Timeliness. The district court s timeliness ruling requires a discussion of both Rule 60(b)(6) law on timeliness as well as the factors the District Court cited in finding that the Samish Tribe s motion was not timely. F.R.C.P. 60(b) provides a procedure whereby, in appropriate cases, a party may be relieved of a final judgment. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863 (1988). 16 The Rule itself does not particularize the factors that justify relief..., id. at 863-64. Rule 60(c ) states that [a] motion under Rule 60(b) must be made within a reasonable time. Rule 60(b) vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice, Klapprott v. United States, 335 U.S. 601, 615 (1949), while also cautioning that it should only be applied in extraordinary circumstances, Ackermann v. United States, 340 U.S. 193, 199 (1950). Extraordinary circumstances is not a Rule 60(b)(6) factor by itself. Rather, it is a basis for granting Rule 60(b)(6) relief, Liljeberg, 486 U.S. at 864; if 16 In its 2002 Order denying Samish s Rule 60(b)(6) motion, the district court noted that: The Opposition Tribes and the United States believe both that there are procedural bars to the Samish s motion.... Dkt. # 68, p. 2, ER 49. 21

Case: 08-35794 11/04/2008 Page: 29 of 60 DktEntry: 6696470 extraordinary circumstances exist, a party is entitled to Rule 60(b) relief. Timeliness is part of the extraordinary circumstances equation. The principle was developed by the Supreme Court to limit the availability of Rule 60(b)(6) relief to deserving situations. Extraordinary circumstances first appeared in Klapprott v. United States, supra, where the Court stated: But petitioner s allegations set up an extraordinary situation which cannot fairly or logically be classified as mere neglect on his part. 335 U.S. at 613. A year later in Ackermann, supra, the Court contrasted the facts of the case before it with the facts in Klapprott: The Klapprott case was a case of extraordinary circumstances. 340 U.S. at 198, 202. Timeliness is an integral part of determining whether extraordinary circumstances exist under Rule 60(b)(6). In United States v. Alpine Land & Reservoir, Co., 984 F.2d 1047, 1049 (9 th Cir. 1993), citing Klapprott, Ackermann and Liljeberg, the Court stated: Rule 60(b)(6) has been used sparingly as an equitable remedy to prevent manifest injustice. The rule is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment.... Our review of cases in this and other circuits illustrates that the courts of appeal have heeded the Supreme Court s admonitions regarding Rule 60(b)(6); such relief is available only where extraordinary circumstances prevented a litigant from seeking earlier, more timely relief.... the timeliness of a Rule 60(b)(6) motion depends on the facts of each case,... (citation omitted)... These cases demonstrate that Rule 60(b)(6) relief normally will not be granted unless the moving party is able to show both injury and that circumstances beyond its control prevented timely action to protect its interests. 22

Case: 08-35794 11/04/2008 Page: 30 of 60 DktEntry: 6696470 See Community Dental Services v. Tani, 282 F.3d 1164, 1168 (9 th Cir. 2002); Samish, supra, 394 F.3d at 1157. When the Court in Samish held that Samish s extraordinary circumstances warrants setting aside the judgment in Washington II, 394 F.3d at 1161, it necessarily decided that the Samish Tribe had met the critical components of Rule 60(b)(6) relief: that such relief would accomplish justice and that Samish took timely action to protect its interests. Extraordinary circumstances is part of the Rule 60(b)(6) procedure, 17 and under Leslie Salt III, supra, the Samish Court s conclusion means the court implicitly rejected all arguments that the [Tribe s claim] is invalid for procedural reasons under [Rule 60(b)(6)]. 55 F.3d at 1393. The issue of timeliness was also implicitly decided in Samish because timeliness was an issue argued at great length in 2002 in the district court. Dkt. # 40, pp. 12-20, ER 564-72 (time between 1996 and 2001); Dkt. # 40, Exs. 18 and 19, ER 680-88 (affidavits; same); Dkt. # 45, pp. 17, 24-5, 28-9, ER 558-62 (Opposition Tribes). In fact, the Opposition Tribes argued that Samish s alleged inability to hire counsel from 1996 to 2001 is irrelevant. Id. at 29. The Opposition Tribes presented no evidence in opposition to Samish s timeliness arguments or testimony. Id. at 17, 28-29. The Ninth Circuit was specifically aware 17 Treaty Tribes themselves noted: The focus under Rule 60(b)(6) must be on the extraordinary circumstances, not the correctness of the judgment. Dkt. # 45, p.25, ER 560. 23

Case: 08-35794 11/04/2008 Page: 31 of 60 DktEntry: 6696470 of this time period. 18 Judge Rothstein referenced the timeliness issue in her Order denying Samish s Rule 60(b)(6) motion. Dkt. # 68, pp. 9-10, ER 56-57 (timeliness a Rule 60(b)(6) factor); id., p. 19 n. 12, ER 66 (not ruling on timeliness of motion because extraordinary circumstances not shown). This Order was part of the record before the Ninth Circuit in Samish. In addition to these materials, the timeliness of Samish s motion was addressed in appellate briefs, Samish, Dkt. # 9, pp. 44-45 and n. 24, ER 771-72; Samish, Dkt. # 20, p.3, ER 753 (Samish waited more than five years to file motion); Samish, Dkt. # 21, p. 14 n. 6, ER 731; Samish, Dkt. # 27, pp. 25-26, ER 823-24, as well as in petitions for rehearing, Samish, Dkt. # 61, p. 6, ER 693 (Samish Motion filed five years after recognition); Samish, Dkt. # 80, pp. 24-25, ER 690-91. This briefing indicates the Court decided the issue of timeliness by implication. Firth v. United States, 554 F.2d 990, 993-94 (9 th Cir. 1977); Hanna Boys Center, supra, 853 F.2d at 685; Leslie Salt III, supra, 55 F.3d at 1393. Timeliness is part of the calculus of determining extraordinary circumstances under Rule 60(b)(6). See Scola v. Boat Frances, R., Inc., 618 F.2d 147, 155 (1 st Cir. 1980) ( granting the defendant s [Rule 60(b)(6)] motion without requiring defendant to show extraordinary circumstances explaining and justifying the 18 The Court specifically noted the date of Samish recognition, see 394 F.3d at 1153, 1156 (1996), and filing of Samish s (2002)Rule 60(b)(6) motion. Id. at 1156. 24