Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1990)

MEMORANDUM^** 

Appellants appeal the denial of their motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. We affirm.

This is the third time these parties appear before this court. The facts surrounding the prior proceedings are stated in Washington State Health Facilities v. Washington Dep't of Social and Health Servs., 879 F.2d 677 (9th Cir. 1989) ("WSHF II "). In WSHF II this court, in reversing the decision of the district court, concluded:

Any cost savings retained by [nursing home] providers after [July 1, 1979] must be refunded to the State of Washington, while simultaneously as of that date the providers are entitled to be compensated according to the "return on equity" system set forth in the amended plans.

879 F.2d at 682. WSHF II was decided on July 14, 1989. The appellants did not petition this court for a rehearing and did not petition the Supreme Court for a writ of certiorari.

On remand, the district court, in accordance with the decision in WSHF II, vacated its judgment and entered a new judgment which included the above quoted language from WSHF II. ER 18-19. The new judgment was entered on December 18, 1989. The appellants did not file a timely appeal from the judgment. On April 12, 1990, the appellants filed a motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. The district court denied the motion on May 4, 1990. ER 16-17. Appellants filed a notice of appeal on June 1, 1990 appealing "the Order Denying the Plaintiffs' FRCP 60(b) Motion for Relief from Judgment entered on the 4th day of May, 1990, and the Order Vacating Judgment." ER 13.

As a preliminary matter, we note that to the extent that the appellant seeks review of the December 18, 1989, Order Vacating Judgment, the appeal is not timely and will not be addressed. Fed. R. App. P. 4(a). The sole issue before us is the district court's denial of the appellant's motion for relief from judgment under Rule 60(b).

Rule 60(b) provides in pertinent part:

[T]he court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (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; (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; or (6) any other reason justifying relief from the operation of the judgment.

Fed. R. Civ. P. 60(b). Motions for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) are addressed to the sound discretion of the district court and will not be reversed absent some abuse of discretion. Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 832 (9th Cir. 1986).

Appellants argue on appeal that the conclusion in WSHF II, that the nursing home providers are entitled to be compensated according to the "return on equity" system as of July 1, 1979, is clearly erroneous "obiter dictum." Appellants direct our attention to certain regulations which support their argument that the nursing home providers were entitled to return on equity compensation as of January 1, 1979. Appellants seek to have the district court's judgment vacated and the case remanded for entry of a new judgment deleting any reference to the return on equity system.

We do not address the correctness or legal force of the conclusions in WSHF II. We consider only whether the district court abused its discretion in denying the motion. The law in this circuit is clear. "When a case has been decided by an appellate court and remanded, the court to which it is remanded must proceed in accordance with the mandate and such law of the case as was established by the appellate court." Firth v. United States, 554 F.2d 990, 993 (9th Cir. 1977) (citing 1B Moore's Federal Practice p 0.404(10), at 571 (2d ed. 1975)).¹  A district court is " 'without power to do anything ... contrary to either the letter or spirit of the mandate construed in the light of the opinion of this court deciding.' This is true even if the mandate was in error." Colville Confederated Tribes v. Walton, 752 F.2d 397, 400-01 (9th Cir. 1985) (citations omitted).

In the present case, the appellate court (in WSHF II) concluded that as of July 1, 1979, the nursing home "providers are entitled to be compensated according to the 'return on equity' system set forth in the amended plans." 879 F.2d at 682. In accordance with this court's decision in WSHF II the district court vacated its earlier judgment and entered a new judgment which included the concluding language from WSHF II quoted above. Because the district court did precisely what it was required to do on remand, the appellants' arguments do not provide a proper basis for granting a rule 60(b) motion, and the district court did not abuse its discretion in denying said motion.

The appellants' argument would have been appropriate for a petition for rehearing of WSHF II, a petition for certiorari to the Supreme Court, or perhaps a direct appeal from the district court's entry of judgment upon remand. See supra note 1. No such petition or appeal was timely filed, however, and the only order on appeal is the denial of the appellants' 60(b) motion. The appellants' motion under Rule 60(b) cannot be used as a substitute for appeal of the district court's judgment upon remand. Rohauer v. Friedman, 306 F.2d 933, 937 (9th Cir. 1962); Morse-Starrett products Co. v. Steccone, 205 F.2d 244, 249 (9th Cir. 1953). It similarly may not be used as a substitute for a petition for rehearing.

Appellants also argue that clarification of the holding in WSHF II is "necessary to prevent [the Washington State Department of Social and Health Services ("DSHS") ] from attempting to recoup funds paid as return on equity for the first six months of 1979," and failure to so clarify will result in further litigation. This question is not presently before this court. At issue is the district court's denial of the appellants motion for relief from its judgment on remand, and the district court did not abuse its discretion in denying the motion.

AFFIRMED.