Federal District Court Opinions

AIR INDIA, LTD. v. BRIEN, (E.D.N.Y. 12-27-2006) AIR INDIA,
LTD., et. al., Plaintiffs, v. UNA F. BRIEN, et. al.,
Defendants. 00-CV-1707. United States District Court, E.D.
New York. December 27, 2006


LEO GLASSER, Senior District Judge


This action has been the subject of protracted litigation
extending over a period of more than a decade and involving
more than a dozen airlines. Familiarity with the underlying
facts and issues is assumed. These issues have been
litigated repeatedly before this Court not only in this
action, but in three related ones as well,[fn1] and have
found their way to the Court of Appeals for the Second
Circuit and back. Despite the numerous efforts of this
Court to decide the issues with finality, this action once
again presents itself for adjudication. These efforts have
obviously failed. Currently pending before the Court is
Defendants’ Fed.R.Civ.P. 60(b)(6) motion for relief from
this Court’s March 13, 2003[fn2] Order. Page 2


On March 23, 2000, a group of airlines (collectively, “Air
India” or “Plaintiffs”) filed this action seeking a
declaratory judgment that the Immigration and
Naturalization Services’s (“INS”) imposition of fines on
them for transporting special immigrants who subsequently
received waivers of the visa requirement was unlawful.
Additionally, Plaintiffs sought a declaration that a 1998
amendment to the Regulations addressing visa requirements
of aliens (“the Regulations”), promulgated pursuant to 8
U.S.C. § 1323, was void because it was contrary to
Congressional intent and because it was promulgated without
opportunity for notice and comment in violation of the
Administrative Procedure Act, 5 U.S.C. § 553 (“APA”).
In a Memorandum and Order (“M & O”) dated February 14,
2002, this Court extensively reviewed the Regulations
promulgated under 8 U.S.C. § 1323, specifically, 8
C.F.R. § 211,[fn3] including the various revisions
and amendments to the Regulations. In that M & O, this
Court determined that while the fines were properly imposed
pursuant to the plain text of the Regulation, the 1966
version of the Regulation was void as it was promulgated in
violation of the APA’s notice and comment requirement. Since
the 1966 version allowed for the imposition of fines where
the 1957 version did not, the 1966 version imposed a
liability that did not exist in the previous version and
was thus subject to the notice and comment requirement.
Since it did not comply with the APA, the Regulation was
void and any Page 3 fines imposed pursuant to the
Regulation were arbitrary and capricious. This Court also
determined that any challenges to the 1998 amendment were
not ripe for review. See Air India, et. al., v. Brien, et.
al., No. 00-1707, slip op. (E.D.N.Y. Feb. 14, 2002).

Subsequently, Defendants moved for reconsideration of the
March 13 Order pursuant to Fed.R.Civ.P. 59(e). Defendants
asserted a statute of limitations defense, contending that
challenges to Regulations as being promulgated without
notice and comment in violation of the APA are subject to a
six year statute of limitations as set forth in 28 U.S.C.
§ 2401. In an M & O dated March 13, 2003, this Court
determined that any procedural challenge to the 1966
Regulation was in fact time barred, but revisited the
substantive challenge to the Regulation.[fn4] Noting that
this Court had addressed several substantive challenges in
its February 14 Order and rejected them, this Court
nonetheless considered a previously unconsidered
substantive challenge: namely, that the imposition of fines
under the Regulation was improper in that it violated the
stated intent of the Attorney General in promulgating the
1966 version of the Regulation. This Court noted that the
notice and comment section of the 1966 version specifically
stated that the Regulation was not subject to notice and
comment because it “confer[red] benefits on persons
affected thereby.” 31 Fed. Reg. 13387 (Oct. 15, 1966). This
Court found that such a clear expression of intent refuted
the argument that the Regulation was intended to impose
liability on airlines when none had existed under the 1957
version of the Regulation, despite the clear language of
the 1966 Regulation that in fact did allow for the
imposition of fines. This Court also found that the INS had
not sought Page 4 to impose the fines for the first
twenty-two years after the 1966 Regulation, which suggested
that the INS had not interpreted the Regulation as allowing
for such fines, either. Therefore, this Court found that
the INS’s decision to impose fines twenty-two years after
the 1966 version of the Regulation was promulgated was
arbitrary, capricious and an abuse of discretion. See Air
India v. Brien, 261 F.Supp.2d 134 (E.D.N.Y. 2003).

Considering the six-year statute of limitations to
procedural challenges, this Court sua sponte addressed the
Plaintiffs’ procedural challenge to the 1998 amendment of
the Regulation. The Court found that the 1998 amendment to
the 1997 version of the Regulation was a legislative rule
that was subject to the notice and comment requirement of
the APA. Since there was no notice and comment period, it
was void. See id.

On September 14, 2004, this Court issued an M & O in a
related case, United Airlines, Inc. v. Jones, 337 F.Supp.2d
406 (E.D.N.Y. 2004) (“United Airlines”). In United
Airlines, this Court held that the unambiguous
Congressional intent of 8 U.S.C. § 1323 was to
preserve fines against airlines which brought undocumented
aliens to the United States regardless of the subsequent
admission of the alien either via waiver of the required
documents or parole. In a lengthy and detailed M & O, this
Court analyzed prior decisions of the Board of Immigration
Appeals (“BIA”) that found certain versions of the
Regulations as not allowing for the imposition of fines on
airlines when the alien received a waiver of the
documentary requirements. This Court found those BIA
decisions to be contrary to Congressional intent and
flawed. Relying heavily on the Supreme Court decision in
Hamburg-American Line v. United States, 291 U.S. 420 (1934),
this Court found that interpreting Regulations as not
allowing for the imposition Page 5 of fines was
erroneous. The Court specifically found that a waiver of
the required documents is “for the benefit of the alien and
not for the benefit of the carrier as against which the
fine is preserved against any discretionary admission.”
United Airlines, 337 F.Supp.2d at 418. Moreover, this Court
found that since “[t]he manifest intention of Congress . .
. was to subject carriers to a penalty for taking on board
and bringing to the United States aliens not in possession
of required documents,” id. (citation omitted), any
administrative interpretation of Regulations to the
contrary must be, and therefore were, rejected. See id.

Based on the decision in United Airlines, Defendants moved
this Court on December 1, 2004 pursuant to Fed.R.Civ.P.
60(b)(6) for relief from the March 13, 2003 Order.


I. Fed.R.Civ.P. 60(b)

A. Timeliness

In relevant part, Fed.R.Civ.P. 60(b) provides that “[o]n
motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a
final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; or (6) any other reason justifying relief from the
operation of the judgment.[fn5] Page 6

Rule 60(b) motions may be granted only where the movant
makes a showing of exceptional circumstances requiring
relief. See Spinelli v. Sec’y of Dept. of Interior, No.
99-8163, 2006 WL 2990482, at *2 (E.D.N.Y. Oct. 19, 2006)
(Bianco, J.) (“`Since 60(b) allows extraordinary relief, it
is invoked only upon a showing of exceptional
circumstances.'”) (quoting Cent. Vt. Pub. Serv. Corp. v.
Herbert, 341 F.3d 186, 190 (2d Cir. 2003)). The provisions
of Rule 60(b) are mutually exclusive, such that “a court
`may treat a motion to vacate a prior judgment as having
been made under 60(b)(6) only if the other, more specific
grounds for relief encompassed by the rule are
inapplicable.'” Spinelli, 2006 WL 2990482, at *3 (quoting
Maduakolam v. Columbia Univ., 866 F.2d 53, 55 (2d Cir.
1989)); see also Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 863 (1988) (“Rule 60(b)(6) . . .
grants federal courts broad authority to relieve a party
from a final judgment `upon such terms as are just,’
provided that the motion is made within a reasonable time
and is not premised on one of the grounds for relief
enumerated in clauses (b)(1) through (b)(5).”) (citations
omitted). While “[t]he Rule does not particularize the
factors that justify relief,” id. at 864, the Supreme Court
has noted “that it provides courts with authority `adequate
to enable them to vacate judgments whenever such action is
appropriate to accomplish justice,'” id. (quoting Klapprott
v. United States, 335 U.S. 601, 614-15 (1949) (plurality
opinion of Black, J.)), “while also cautioning that it
should only be applied in `extraordinary circumstances.'”
Id. (quoting Ackermann v. United States, 340 U.S. 193

Plaintiffs assert that this motion is untimely because it
is properly a Page 7 60(b)(1) motion and therefore bound
by a statutory one year limitation, or, alternatively, if
it is properly a 60(b)(6) motion it is untimely because it
was not brought within a “reasonable time” as required by
the statute. Defendants assert that it is properly a
60(b)(6) motion and is timely because it was brought
approximately three months after this Court’s decision in
United Airlines which conflicted with the March 13 Order.

If this motion is properly subject to Fed.R.Civ.P.
60(b)(6), and does not fall under the purview of subparts
(1) through (5), it is in fact timely. While subparts (1)
through (3) must be made within one year of the order which
is sought to be set aside, see Fed.R.Civ.P. 60(b) (“the
motion shall be made within a reasonable time, and for
reasons (1), (2), and (3) not more than one year after the
judgment, order, or proceeding was entered or taken”),
subparts (4) through (6) must be made only within a
“reasonable time.” Id. Here, Defendants have moved pursuant
to Fed.R.Civ.P. 60(b)(6) based on this Court’s decision in
United Airlines, which was entered on Sept. 14, 2004.
Defendants made this motion on Dec. 1, 2004, a mere two and
a half months after the United Airlines decision. Although
their motion was made more than a year after the March 13
decision from which they seek relief, and thus would be
time-barred if it properly should have been made pursuant
to subparts (1) through (3), it would be timely if properly
made pursuant to subpart (6). See Dunlop v. Pan Am. World
Airways, Inc., 672 F.2d 1044, 1051 (2d Cir. 1982) (Finding
Fed.R.Civ.P. 60(b)(6) motion timely where it was filed
within four months of a New York State decision putting
appellants on notice of a potential problem with a federal
settlement, even though it was made two years after the
settlement at issue, because “[u]ntil the [state]
dismissal, appellants had Page 8 understandably relied on
repeated assurances by the Secretary that the federal
settlement would not bar their state claims.”).

Thus the timeliness of the motion depends on whether it
was properly brought pursuant to subpart (6) in that it
does not fall into any of the other five subparts.
Defendants assert several grounds justifying relief
pursuant to Fed.R.Civ.P. 60(b)(6): (1) this Court’s
decision in United Airlines demonstrates that this Court’s
decision in Air India was incorrect; (2) this Court
rendered the decisions in Air India and United Airlines that
are at odds with each other, so it is fitting that this
Court clarifies the confusion resulting in those decisions;
(3) the interests of justice dictate that this Court
re-visit its decision in Air India because it creates
confusion in the law, making immigration enforcement and
control of the borders difficult; (4) Plaintiffs have
appealed the United Airlines decision, and the confusion
between Air India and United Airlines will likely create
difficulties for Defendants in defending that appeal; and
(5) the interest in preserving the finality of judgments is
limited in this case where this action is interconnected
with several other cases that are at different stages of
litigation and there currently is no finality in judgment.
Plaintiffs, on the other hand, contend that in reality
Defendants’ motion is one to correct either (1) Defendants’
own mistake in failing to previously assert a defense it
contends is meritorious; or (2) what Defendants assert is
this Court’s “error” in its Air India decision, both of
which are in fact bases for a motion pursuant to
Fed.R.Civ.P. 60(b)(1), and are thus time-barred because it
was filed more than one year after the March 13, 2003
Order. Alternatively, Plaintiffs contend that even if this
motion is properly a 60(b)(6) motion, it should be denied
as failing to satisfy the “extraordinary circumstances”
standard. Page 9

B. Judicial Error

Plaintiffs contend that this is properly a 60(b)(1) motion
for relief from judicial error. The Circuit Courts of
Appeal are split as to whether a motion for reconsideration
based on judicial error falls under 60(b)(1).[fn6] The
Second Circuit caselaw is equally confusing. See, e.g.,
Schildhaus v. Moe, 335 F.2d 529, 531 (2d Cir. 1964)
(“Whether relief may be sought under Rule 60(b) for what is
merely an error by the court and, if so, for how long
beyond the expiration of the ten-day limit set by Rule
59(e) for motions to `alter or amend a judgment’ are not
altogether clear.”). In Page 10 distinguishing between the
opinions of the various Circuit courts, Moore’s Federal
Practice asserts that “[t]he leading proponent for the
construction of Rule 60(b)(1) so as to permit consideration
of legal errors by the court was Judge Friendly of the
Second Circuit.” 12-60 Moore’s Federal Practice –
Civil § 60.41. In Schildhaus, the Second Circuit
noted that “there is indeed good sense in permitting the
trial court to correct its own error and, if it refuses, in
allowing a timely appeal from the refusal; no good purpose
is served by requiring the parties to appeal to a higher
court, often requiring remand for further trial
proceedings, when the trial court is equally able to
correct its decision.” Schildhaus, 335 F.2d at 531. However,
the impact of Schildhaus is questionable, as the decision
was limited to a very specific situation where a Supreme
Court ruling decided eleven days after the trial court in
Schildhaus ruled on the same legal issue clearly indicated
that the ruling had been legally incorrect. See id. Thus,
Moore’s notes that the “Second Circuit [c]autiously
[p]ermits [r]elief [f]rom [l]egal [e]rror.” 12-60 Moore’s
Federal Practice – Civil § 60.41. While the
court in Schildhaus embraced the reach of 60(b)(1) to
include judicial error, it was also cautious to limit such
interpretation to very specific circumstances such as those
present in Schildhaus.

Later Second Circuit cases have expressed a hesitation to
include judicial error as a “mistake” under 60(b)(1). See In
re Texlon Corp., 596 F.2d 1092, 1100 (2d Cir. 1979) (“We
adopted th[e] view [that `mistake’ under 60(b)(1)
encompasses judicial error] in Tarkington v. United States
Lines Co., 222 F.2d 358 (2d Cir. 1955), but only in what we
later characterized, see Schildhaus v. Moe, 335 F.2d 529,
531 (2d Cir. 1964), as `very special facts’ . . . The 1978
edition of the Moore treatise reflects some disenchantment
with the practice of utilizing F.R.Civ.P. 60(b)(1) as a
vehicle for the Page 11 correction of judicial error, and
the other leading treatise on federal practice displays
still less enthusiasm.”) (citing 11 Wright & Miller,
Federal Practice and Procedure, s 2858 (1973)); Matter of
Emergency Beacon Corp., 666 F.2d 754, 759 (2d Cir. 1981)
(“Although the language of the current Rule 60(b)(1) is
broad enough to encompass errors by the court, the
authorities are divided as to whether it is properly so
interpreted.”) (citing 7 Moore’s Federal Practice P
60.22(3) (2d ed. 1979); 11 C. Wright & A. Miller, Federal
Practice and Procedure s 2858, at 176-80 (1973)).

More recently, district courts within the Second Circuit
have interpreted 60(b)(1) as encompassing judicial error.
See In re Asbestos Litig., 173 F.R.D. 87, 90, n. 2
(S.D.N.Y. 1997) (“When applied to mistakes by the court,
Rule 60(b)(1) generally allows for relief where the error
involves the application of law.”) (citing Int’l Controls
Corp. v. Vesco, 556 F.2d 665, 670 (2d Cir. 1977), cert.
denied, 434 U.S. 1014 (1978); Parks v. U.S. Life & Credit
Corp., 677 F.2d 838, 839-40 (11th Cir. 1982), reh’g denied,
685 F.2d 1389 (11th Cir. 1982); 11 Wright, Miller & Kane,
Federal Practice and Procedure: Civil 2d § 2858 at
293-98 (2d ed. 1995)); PG 1044 Madison Assocs., L.L.C. v.
Sirene One, L.L.C., 229 F.R.D. 450, 452 (S.D.N.Y. 2005)
(“Although 60(b)(1) does not serve as a substitute for
appeal, it nevertheless `encompass[es] judicial mistake in
applying the appropriate law.'”) (citations omitted);
Badian v. Brandaid Commc’ns Corp., No. 03-2424, 2005 WL
1083807, at *2 (S.D.N.Y. May 9, 2005) (same); Spira v.
Ashwood Fin., Inc., 371 F.Supp.2d 232, 236 (E.D.N.Y. 2005)
(“`Relief under 60(b)(1) is . . . appropriate where a court
may have overlooked Page 12 certain parties’ arguments or
evidence in the record.'”) (citation omitted).[fn7]

A review of the Court’s M & O of March 13, 2003 in Air
India at which this motion is aimed gives rise to questions
which, for me, are interesting, if not troubling. What
constitutes “error” within the meaning of the term judicial
error? Before the Court then was a motion pursuant to
Fed.R.Civ.P. 59(e) for an order amending a prior decision
of the Court reflected in an M & O of February 14, 2002,
which, as described in the opening sentence of the March
13th M & O, was “an action [that] involve[d] the validity,
interpretations, and application of certain INS
[R]egulations that may require aliens lawfully admitted for
permanent residence who are returning from abroad (“special
immigrants”), see 8 U.S.C. § 1101(a)(27)(A), to
present certain re-entry documents, and the propriety of
fining airlines who transport those lacking such

The M & O of February 14, 2002, extended over thirty pages
devoted entirely to a discussion and parsing primarily
lengthy and complex Immigration and Naturalization Act
(“INA”) Regulations addressing whether an alien is required
to possess a passport and/or a visa when entering the
United States; whether or not such document was required
determined, it was contended, whether an airline
transporting such alien to the United States could be
fined. If such a document was required and not Page 13
possessed by the alien when arriving here, the airline could
be fined, and if the document was not possessed but not
required to be, the airline, it was argued, could not be

A reading of the transcript of the proceeding at which the
motion was argued on January 18, 2002, plainly reveals that
the focus of the argument was on the interpretation and
validity of the INA Regulations. For example:

On page 3, lines 17-18: “8 CFR Section 211, the
[R]egulation at issue in this case . . .” (emphasis

On page 4, lines 21-22: “The section of the [R]egulation
at issue is Subdivision B of that [R]egulation which
corresponds to Subdivision B of 1182.” (emphasis added).

On page 5, lines 20-21: “Every one of the passengers at
issue was readmitted under 211(b)(3) under the
[R]egulation . . .” (emphasis added).

On page 6, lines 9-10: “[W]here the [R]egulation clearly
and affirmatively requires visas or courts to do so . . .”
(emphasis added).

On page 6, lines 22-25 and page 7, lines 1-2: “The INS
also concedes that it has no authority to require visas of
special immigrants who are admitted under the 1966 version
of the [R]egulation. That is because the INS insists in
both its briefs submitted in support of its motion that
the 1966 and 1998 amendment [R]egulations are identical.”
(emphasis added). Page 14

On page 9, lines 1-3: “[T]he INS has failed to this very
day explain how its interpretation of the [R]egulation at
issue can be properly interpreted as permitting fines on
airlines . . .” (emphasis added).

On page 10, lines 4-5, 16-18, 21-25; page 11 lines 1,
9-13: The Court:

“Is it your position then the [R]egulations are invalid
because it hasn’t been published for comment?”

“Is it your position the [R]egulation is valid
notwithstanding the fact that it wasn’t published with
notice for comment?”

Mr. Fuchs: “My position is if the [R]egulation is valid,
either way. If the [R]egulation is valid, then it cannot
be interpreted to any detriment on the regulated public
that did not exist before and that the INS’s
interpretation cannot be correct. If the INS’s
interpretation is correct, the intent was to impose a new
detriment, the [R]egulation is void.”

The Court: “In your view it doesn’t make any difference
whether the [R]egulation had been published for comment or
not, either way it would have been valid or in either way,
it wouldn’t have justified the imposition of the fine?”

On page 15, lines 8-10: “In the Attorney General’s
statement of intent in the [R]egulation, the [R]egulation
at issue, we as persons affected by the [R]egulation were
intended to benefit.” (emphasis added).

A review of the briefs filed by the parties in the
underlying motions Page 15 reveals a similar emphasis.
Thus, the issue presented to the Court was an
interpretation of the Regulations, and not the underlying
statute.[fn8] As such, it can hardly be said that, in
addressing the issues before it, namely, the validity and
import of the Regulations, this Court’s prior decisions in
Air India, while ultimately rendered moot by a precise and
analytical focus upon the underlying statute, constituted
judicial error.

Additionally, the Court notes that the arguments focusing
on the Regulations rather than the statute were not error
on the part of Defendants or Defendants’ counsel. The BIA,
the administrative agency charged with interpreting the
INA Regulations and immigration statutes, had issued a long
string of decisions focusing entirely on the Regulations
and determining fine liability based on the Regulation in
effect at the time of each fine. See United Airlines, 337
F.Supp.2d at 411 (Discussing the BIA decision in Matter of
Plane “CUT-604”, 1958 WL 9850, 7 I. & N. Dec. 701, 702
(1958), and noting that the BIA there stated, “The carrier
was fined in accordance with 8 U.S.C. § 1323 and the
carrier appealed. The Board stated the issue to be whether
the waiver relieved the carrier of liability to fine and
began its decision thus: `We have previously answered this
question both affirmatively and negatively, depending upon
the [R]egulations in effect at the time involved.'”). As
such, both plaintiffs’ and defendants’ focus on the
Regulations, as opposed to the underlying Page 16
statute, were entirely justified.

While Plaintiffs assert that the prior decisions of this
Court were the result of error (either judicial error,
error by counsel or error by party), thereby subjecting
this motion to Rule 60(b)(1) and rendering it time-barred,
for the foregoing reasons, this Court determines that no
such error applies here.

C. Fed.R.Civ.P. 60(b)(6)

Rule 60(b)(6) “`confers broad discretion on the trial court
to grant relief when appropriate to accomplish justice.'”
Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986), cert.
denied, 480 U.S. 908 (1987) (quoting Klapprott, 335 U.S. at
615). It is “properly invoked where there are extraordinary
circumstances,” id. (quoting Ackermann, 340 U.S. at 199),
or “where the judgment may work an extreme and undue
hardship,” id. (citations omitted), and “should be
liberally construed when substantial justice will thus be
served.” Id. However, “final judgments should not be
reopened lightly.” Air Espana v. Brien, No. 95-1650, 1998
WL 178823, at *2 (E.D.N.Y. Feb. 11, 1998) (quoting Nemaizer
v. Baker, 793 F.2d 58, 60 (2d Cir. 1986)). Thus, “[w]hen a
movant is able to demonstrate that the interests of justice
favor vacatur, Rule 60(b)(6) `allows a district court to
vacate its own final judgment. . . . The Rule gives the
Court such authority to accomplish justice and leaves such
determinations to its discretion.'” Socialist Republic of
Romania v. Wildenstein & Co. Inc., 147 F.R.D. 62, 64-65
(S.D.N.Y. 1993) (citation omitted). In Klapprott, the
Supreme Court noted, “In simple English, the language of
the `other reason’ clause, for all reasons except the five
particularly specified, vests power in courts adequate to
enable them to vacate judgments whenever such action is
appropriate to accomplish justice.” Klapprott, 335 U.S. at
614-15. Page 17

As noted above, this Court determines that the
circumstances leading to the prior decisions do not
constitute error by the Court or parties. Even assuming,
arguendo, that there was some form of error, it would not
be fatal to Defendants’ motion. Defendants have brought
this motion based on several other grounds which properly
fall under a 60(b)(6) motion. Specifically, Defendants
assert that the conflicting opinions issued by this Court
have created confusion in the law as well as specific
hardship to Defendants who will have difficulty enforcing
the immigration laws and controlling the border unless the
decisions are clarified. Additionally, as will be discussed
more fully below, Regulations promulgated pursuant to a
statute, as here, are bound by the text of the statute
itself as well as the congressional intent behind the
statute. This Court finds that these grounds form
sufficient bases for a 60(b)(6) motion based on
“extraordinary circumstances” and because “the judgment may
work an extreme and undue hardship” that in the interest of
justice require reconsideration of its March 13, 2003 Order.
In so categorizing the motion, this Court is hardly
performing the “semantic tour-deforce” the Ninth Circuit
accused Judge Learned Hand of doing in United States v.
Karahalias, 205 F.2d 331 (2d Cir. 1953), where the Second
Circuit placed the 60(b) motion within the purview of
subsection (6) rather than subsection (1). See McKinney v.
Boyle, 404 F.2d 632, 634 (9th Cir. 1968), cert. denied, 394
U.S. 992 (1969). Viewing this motion as properly pursuant
to 60(b)(6), it is timely as it was brought within a
reasonable time after the United Airlines decision. Page 18

II. Administrative Regulations are Limited by the Statute
Pursuant to Which they are Promulgated — The Chevron

Administrative agency Regulations are subject to judicial
scrutiny ensuring that the Regulation does not exceed the
scope of the statute pursuant to which it was promulgated
and is not contrary to the congressional intent behind the
statute. See Chevron U.S.A., Inc. v. Natural Res. Defense
Council, Inc., 467 U.S. 837, 843, n. 9 (1984) (“The
judiciary is the final authority on issues of statutory
construction and must reject administrative constructions
which are contrary to clear congressional intent.”)
(citations omitted). Chevron dictates that a court
reviewing an agency’s interpretation of the statute that it
administers must consider “[f]irst, always, [] the question
[of] whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear, that
is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed
intent of Congress.” Id. at 842-43; see also Kruse v. Wells
Fargo Home Mortgage, Inc., 383 F.3d 49, 57 (2d Cir. 2004)
(declining to defer to the administrative agency’s
interpretation of the statute where such interpretation was
contrary to the statute and congressional intent).

In the Sept. 14, 2004 United Airlines decision, this Court
employed a Chevron analysis and determined that “[t]he
statute, 8 U.S.C. § 1323, is unambiguous. A carrier
acts unlawfully, it provides, when it brings to the United
States an undocumented alien and may be fined for doing so.
Liability is incurred by the carrier at the moment that
alien is brought here. That reading of the statute advances
the recognized intent of Congress in enacting it.” United
Airlines, 337 F.Supp.2d at 413 (citations omitted). In so
defining the statute, this Court determined that prior BIA
Page 19 decisions were wrong where they allowed Regulations
promulgated pursuant to the statute to prohibit the
imposition of fines on carriers where an alien was
subsequently paroled or received a waiver. See id. (noting
that “[i]t would be an exaggeration to suggest that the
BIA’s interpretation of the [R]egulations as granting a
blanket waiver was so monstrous that all mankind would
unhesitatingly unite in rejecting it. It suffices to say
that, in my view, the BIA’s application of those
[R]egulations was misplaced.”). This Court also found that
the text of the Regulations themselves do not compel such
an interpretation, even if the statutory text had been
ambiguous. See id. at 413-14 (“One parses that [R]egulation
in vain to find language creating a blanket general waiver
or even the slightest hint of one . . . The interpretation
placed upon those [R]egulations by the BIA not only ignores
the condition precedent to the grant of a waiver inherent
in each, it also aborts the intent of Congress as clearly
reflected in §§ 1323(a) and (b).”). In the
March 13 Order, this Court determined that the Attorney
General’s intent could not have been the imposition of
fines on the carriers when the aliens were paroled or
received a waiver because the Regulation’s notice and
comment section stated it was to “confer [] benefits on
persons affected thereby.” Air India, 261 F.Supp.2d at 139
(citation omitted). This was refuted by the Court’s
determination in United Airlines that “[t]he waiver granted
the alien is for his benefit and permits him to enter the
country from which he otherwise would have been excluded.
It plainly is not intended to confer a benefit upon the
carrier which violated our laws by bringing him here
without first ascertaining that he possessed the required
documentation.” United Airlines, 337 F.Supp.2d at 414.

This Court did not specifically address the scope or limit
of 8 U.S.C. Page 20 § 1323 in the previous Air
India decisions, including the March 13 Order. As such, the
Sept. 14 decision in United Airlines renders the March 13
Order moot. While, as noted above, the United Airlines M &
O indicates that even construing the Regulation as
prohibiting fines is a wrong interpretation of the text of
the Regulations, see id. at 413-14, such an interpretation
is irrelevant following this Court’s decision in United
Airlines. Since the statute itself does not allow for a
blanket waiver of fines, regardless of the subsequent entry
of the alien, Regulations promulgated pursuant to the
statute that do allow for such waivers are void. See id. at
414. Thus the focus on the interpretations of the
Regulations and the methods whereby they were promulgated
in the previous Air India decisions missed the point.
Regardless of what the Regulations themselves say, and
regardless of the intent of the Attorney General in
promulgating the Regulations, and regardless of the method
by which they were promulgated, they cannot be construed
as prohibiting the INS from imposing fines on carriers who
bring to the United States aliens without the required
documentation, even if those aliens are subsequently
paroled or receive a waiver of the required documents. See
id. at 413-19.

III. Relief from the March 13 Order

This Court finds that its decision in United Airlines
provides a basis for relief pursuant to Fed.R.Civ.P.
60(b)(6) from its March 13 Order in Air India. The
circumstances here, where this Court’s later decision in a
related case, including most, if not all, of the same
parties, cast a long shadow of doubt on its earlier
decision and, more importantly, rendered the government’s
obligation to control its borders far more difficult,
constitute the “extraordinary circumstances” necessary to
invoke relief under Page 21 60(b)(6). See Matarese, 801
F.2d at 106. This is a situation where “the judgment may
work an extreme and undue hardship,” id., and, as such,
this Court will invoke the “broad discretion on the trial
court to grant relief when appropriate to accomplish
justice” conferred by Rule 60(b)(6). Id. (quoting
Klapprott, 335 U.S. at 615).[fn9]


For the foregoing reasons, Defendants’ motion for relief
from this Court’s March 13, 2003 order is GRANTED.


[fn1] See Air Espana et. al. v. Brien, et. al., 95-cv-1650,
United Airlines et. al. v. Brien et. al., 01-cv-2389 and
Finnair Oy et. al. v. Brien et. al., 02-cv-900.

[fn2] The Order was signed and dated March 13, 2003.
Defendants’ motion indicates that they are seeking relief
from the March 17, 2003 Order. A review of the docket sheet
indicates that although the Order was signed on March 13,
it was docketed on March 17, which accounts for the

[fn3] 8 C.F.R. §§ 211 and 212 are the
Regulations that are at issue in these cases. The
difference between the two Regulations deals with the
status of the alien. Here, § 211 applied.

[fn4] The substantive challenges were not time barred
because Plaintiffs had all filed suit within six years of a
final agency action subjecting them to a fine.

[fn5] Subparts (2) through (5) of 60(b) provide for relief
for the following reasons: (2) newly discovered evidence
which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; or (5) the judgment has been
satisfied, released, or discharged, or a prior judgment
upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment
should have prospective application. These provisions are
not relevant here.

[fn6] See, e.g., Liberty Mut. Ins. Co. v. EEOC, 691 F.2d
438, 441 (9th Cir. 1982) (“The circuits are split as to
whether errors of law may be corrected under Rule 60
motions.”) (citing 7 J. Moore & J. Lucas, Moore’s Federal
Practice para. 60.22[3] (2d ed. 1982); 11 C. Wright & A.
Miller, Federal Practice and Procedure § 2858, at
176-80 (1973 & Supp. 1982); 1 ALR Fed. 771 (1969 & Supp.
1981); Note, Federal Rule 60(b): Finality of Civil
Judgments v. Self-Correction by District Court of Judicial
Error of Law, 43 Notre Dame Law. 98 (1967)); Silk v.
Sandoval, 435 F.2d 1266, 1267 (1st Cir. 1971), cert.
denied, Silk v. Kleppe, 402 U.S. 1012 (1971) (Refusing to
apply 60(b)(1) to judicial error, noting that “[i]f the
court merely wrongly decides a point of law, that is not
`inadvertence, surprise, or excusable neglect.'”); Lowry v.
McDonnell Douglas Corp., 211 F.3d 457, 460-61 (8th Cir.
2000), cert. denied, 531 U.S. 929 (2000) (“It remains the
law in this Circuit that `relief under Rule 60(b)(1) for
judicial error other than for judicial inadvertence’ is not
available.”) (citation omitted); but see Hill v. McDermott,
Inc., 827 F.2d 1040, 1043 (5th Cir. 1987), cert. denied,
484 U.S. 1075 (1988) (“Rule 60(b)(1) does allow relief from
final judgments on account of `mistake,’ and, in this
circuit, the rule may be invoked for the correction of
judicial error, but only to rectify an obvious error of
law, apparent on the record. Thus, it may be employed when
the judgment obviously conflicts with a clear statutory
mandate or when the judicial error involves a fundamental
misconception of the law.”)

[fn7] The Second Circuit has held that a 60(b)(1) motion for
relief from judicial error must be made within the time
allowed for appeal. See In re Texlon Corp., 596 F.2d 1092,
1100 (2d Cir. 1979) (“[T]he `reasonable time’ requirement
of F.R.Civ.P. 60(b) would be read as requiring a motion for
relief from judicial mistake to be made within the time
allowed for appeal.”) (citing 7 Moore, Federal Practice
1100 P 60.25(2) at 268 (2d ed. 1978); 11 Wright and Miller,
Federal Practice and Procedure, s 2862 at 198 (1973)).

[fn8] Defendants correctly point out that they did
reference Hamburg-American Line v. United States, 291 U.S.
420 (1934), upon which this Court based its decision in
United Airlines, in their briefing of the earlier motions.
However, the focus of the argument was unequivocally based
on the interpretation of the various Regulations and the
import of Hamburg upon the ultimate determination of the
case was all but ignored and diverted from the Court’s
attention. See Defendants’ Memorandum of Law in Support of
Motion for Summary Judgment Pursuant to Rule 56 of the
Federal Rules of Civil Procedure.

[fn9] The Court notes that granting Defendants’ motion will
“not be an empty exercise or futile gesture.” See Owens v.
U.S., No. 96-5928, 1997 WL 177863, at *2 (E.D.N.Y. Apr. 3,
1997) (Glasser, J.) (“It has long been established that as
a precondition to relief under Rule 60(b), the movant must
provide the district court with reason to believe that
vacating the judgment will not be an empty exercise or
futile gesture. Although the proffered claim or defense
need not be ironclad, a Rule 60(b) movant must at least
establish that it possesses a potentially meritorious claim
or defense which, if proven, will bring success in its
wake.”) As fully enumerated above, the Defendants have been
practically harmed in a number of ways by the March 13 Order
and granting their motion will provide tangible relief.
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