Cinema '84, Richard M. Greenberg, Tax Matters Partner - Page 8

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               reviewed on appeal.  The requirement derived from a                    
               belief that an appellate court’s mandate bars the trial                
               court from later disturbing the judgment entered in                    
               accordance with the mandate.  It has also been argued                  
               that the appellate-leave requirement protects the                      
               finality of the judgment and allows the appellate court                
               to screen out frivolous Rule 60(b) motions. [Id. at 18;                
               fn. ref. and citations omitted.]                                       
          The Supreme Court, however, held:                                           
               In our view, the arguments in favor of requiring                       
               appellate leave are unpersuasive.  Like the original                   
               district court judgment, the appellate mandate relates                 
               to the record and issues then before the court, and                    
               does not purport to deal with possible later events.                   
               Hence, the district judge is not flouting the mandate                  
               by acting on the motion.  Furthermore, the interest in                 
               finality is no more impaired in this situation than in                 
               any Rule 60(b) proceeding.  Finally, we have confidence                
               in the ability of the district courts to recognize                     
               frivolous Rule 60(b) motions.  Indeed, the trial court                 
               “is in a much better position to pass upon the issues                  
               presented in a motion pursuant to Rule 60(b)”.                         
                    The appellate-leave requirement adds to the delay                 
               and expense of litigation and also burdens the                         
               increasingly scarce time of the federal appellate                      
               courts.  We see no reason to continue the existence of                 
               this “unnecessary and undesirable clog on the                          
               proceedings.”  [Id. at 18-19; citations omitted.]                      
               In light of Standard Oil Co. of Cal., we conclude that Lydon           
          v. Commissioner, supra, and its progeny are no longer viable.  In           
          Lydon we analogized the situation to that of a district court               
          under rule 60(b) of the Federal Rules of Civil Procedure and                
          relied on, inter alia, Hazel-Atlas Co. v. Hartford Co., 322 U.S.            
          238 (1944), Tribble v. Bruin, 279 F.2d 424 (4th Cir. 1960), and             
          Home Indem. Co. v. O’Brien, 112 F.2d 387 (6th Cir. 1940).  The              








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