     Case: 15-50141      Document: 00513168560         Page: 1    Date Filed: 08/25/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50141                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          August 25, 2015
UNITED STATES of America Ex Rel. GEORGE GAGE,                              Lyle W. Cayce
                                                                                Clerk
              Plaintiff–Appellant,

v.

DAVIS S.R. AVIATION, L.L.C., doing business as Challenger Spares and
Support; CHALLENGER REPAIR GROUP, L.L.C.; ORION AIR GROUP,
L.L.C.; BOMBARDIER, INCORPORATED; NORTHROP GRUMMAN
CORPORATION; STEVE DAVIS, Individually; NORTHROP GRUMMAN
DEFENSE MISSION SYSTEMS; NORTHROP GRUMMAN SPACE AND
MISSION SYSTEMS, INCORPORATED,

              Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CV-904


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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       Relator George Gage appeals the district court’s dismissal of his Rule
60(b) motion. Because the district court dismissed the motion without reaching
the merits, we vacate and remand.
                                              I
       Gage brought suit under the False Claims Act against Davis S.R.
Aviation, L.L.C.; Challenger Repair Group, L.L.C.; Orion Air Group, L.L.C.;
Bombardier, Inc.; Northrop Grumman Corp. and related entities; and Steve
Davis (collectively, the defendants). 1 The district court dismissed the case with
prejudice for Gage’s failure to satisfy the pleading requirements of Rule 9(b), 2
and this court affirmed. 3 While the appeal of the district court’s dismissal was
pending before the prior panel, Gage filed a Rule 60(b) motion for relief from
final judgment claiming the discovery of new evidence and requesting the
district court’s in camera inspection of particular documents. While the appeal
was still pending, the district court dismissed the Rule 60 motion “as this case
is on appeal to the United States Court of Appeals for the Fifth Circuit, which
has jurisdiction therein.” Gage now appeals the dismissal of his Rule 60(b)
motion.
                                              II
       We generally review the denial of a Rule 60(b) motion for abuse of
discretion. 4 “A district court abuses its discretion if it bases its decision on an


       United States ex rel. George Gage v. Davis S.R. Aviation, L.L.C., --- F. App’x ---, 2015
       1

WL 4237682, at *1 (5th Cir. July 14, 2015).
       2 FED. R. CIV. P. 9(b) (“In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge,
and other conditions of a person's mind may be alleged generally.”); see also Gage, 2015 WL
4237682, at *2 (“Rule 9(b) requires, at a minimum, that a plaintiff set forth the ‘who, what,
when, where, and how’ of the alleged fraud.” (quoting United States ex rel. Steury v. Cardinal
Health, Inc., 625 F.3d 262, 266 (5th Cir. 2010))).
       3   Gage, 2015 WL 4237682, at *5.
       4Frew v. Janek, 780 F.3d 320, 326 (5th Cir. 2015). But see Carter v. Fenner, 136 F.3d
1000, 1005 (5th Cir. 1998) (holding that review of a Rule 60(b)(4) motion is de novo).
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                                          No. 15-50141
erroneous view of the law or on a clearly erroneous assessment of the
evidence.” 5
                                                III
       Gage argues that the district court was required to consider the merits
of his motion and that its failure to do so constitutes an abuse of discretion.
The defendants concede that the pendency of an appeal is not, by itself, a basis
for dismissal but contend that there are alternative grounds to support the
dismissal on the merits.
       When a notice of appeal is filed, jurisdiction is transferred to the court of
appeals. 6 As this court has explained,
       [w]hen a Rule 60(b) motion is filed while an appeal is pending, this
       circuit, along with other circuits and the commentators, has
       expressly recognized the power of the district court to consider on
       the merits and deny a 60(b) motion filed after a notice of appeal,
       because the district court’s action is in furtherance of the appeal.
       When the district court is inclined to grant the 60(b) motion,
       however, then it is necessary to obtain the leave of the court of
       appeals. 7
The district court “does not have the option simply to deny the motion, without
considering it on its merits.” 8
       This court has previously reversed (or vacated) the denial of a 60(b)
motion and remanded to the district court when the district court erroneously
denied the motion without reaching the merits. 9 In addition, the district court


       5 Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005) (quoting Kennedy v.
Tex. Utils., 179 F.3d 258, 265 (5th Cir. 1999)).
       6   Willie v. Cont’l Oil Co., 746 F.2d 1041, 1046 (5th Cir. 1984).
       Id. (citing Lairsey v. Advance Abrasive Co., 542 F.2d 928 (5th Cir. 1976); Ferrell v.
       7

Trailmobile, Inc., 223 F.2d 697 (5th Cir. 1955)).
       8Silva v. Harris Cty., 5 F.3d 1496, at *2 (5th Cir. 1993) (per curiam) (unpublished but
precedential under 5TH CIR. R. 47.5).
       9 See id. at *1-3 (vacating the district court’s denial of the Rule 60(b) motion because
the “case is currently on appeal to the United States Court of Appeals for the Fifth Circuit”
                                                 3
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                                           No. 15-50141
need not seek leave to consider a Rule 60(b) motion even after appellate review
is finished. 10
                                       *        *         *
       Accordingly, we VACATE and REMAND to the district court for
consideration of Gage’s Rule 60(b) motion.




and remanding to the district court); Lairsey, 542 F.2d at 929, 932 (reversing the district
court’s denial of the Rule 60(b) motion because it was “not filed within the period allowed for
perfecting a timely appeal” and remanding to the district court); Ferrell, 223 F.2d at 698-99
(reversing the district court’s denial of the Rule 60(b) motion on the ground that the movant
had paid the judgment against him and remanding for “a full hearing on the merits” of the
motion); see also Mahone v. Ray, 326 F.3d 1176, 1180 (11th Cir. 2003) (“In this case, . . . the
district court did not consider the merits of [the] Rule 60(b) motions . . . , but instead held
that it lacked jurisdiction to do so [because the appeal was pending]. Based on the foregoing
legal principles, this was erroneous. Accordingly we reverse its dismissal of these motions
with instructions to undertake the inquiry explicated above.”); cf. Lopez Dominguez v. Gulf
Coast Marine & Assocs., 607 F.3d 1066, 1073-76 (5th Cir. 2010) (remanding a case in which
a party needlessly moved the Fifth Circuit on appeal for leave to file a Rule 60(b) motion in
the district court); Robroy Indus. Inc. v. Schwalbach, 257 F. App’x 761, 762 (5th Cir. 2007)
(per curiam) (remanding to the district court for consideration “on the merits” of the
Rule 60(b) motion).
       10   Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 17-19 (1976) (per curiam).
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