On consideration of appellants' petition for rehearing, it is
ORDERED by the Court that appellants' aforesaid petition is denied.
Opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
The Street Readjustment Act of the District of Columbia1 authorizes the City Council2 to close any street or alley which in its judgment has become useless or unnecessary,3 and prescribes the procedures through which closures may eventuate. The Act provides that "the title to the land embraced within the public space so closed," if not vested in the United States, shall "revert to the owners of the abutting property subject to such compensation therefor in money, land or structures as the District of Columbia Council, in its judgment, may find just and equitable,4 in view of all the circumstances of the case affecting near-by [sic] property of abutters and nonabutters."5 The Act further provides "[t]hat if the title to such land be in the United States the property shall not revert to the owners of the abutting property but may be disposed of . . . to the best advantage of the locality and the properties therein and thereby affected . . . or also," unless its use is requested by a federal agency, "be sold6 . . . ."7 Sales of United States alley space must be "for cash at a price not less than the assessed value of contiguous lots,"8 and "[a]ll money derived from the sale of land in which the United States is interested . . . [must] be paid into the treasury of the United States . . . to the credit of the United States."9
Appellants submitted an application for the closing of an alley abutting lots to which they held legal title as trustees for a business organization. It was then, and apparently for a long time thereafter, assumed both by appellants and by District officials that the subject of the application was an "original" alley, owned in fee simple by the United States.10 After compliance with the statutory procedures applicable, the City Council ordered that the alley be closed on the condition that appellants pay $196,200 as the fair market value of the public space the alley had occupied.
Appellants deposited that sum in escrow and the alley was closed, whereupon appellants sued in the District Court for a judgment declaring that the District could not exact compensation for the alley space.11 After suffering an adverse decision and judgment in that court,12 appellants took the present appeal. While the appeal was under submission, appellants filed motions asserting for the first time that, according to information recently acquired, the United States did not own the alley at the time of closure.13 On this new ground, appellants contended that their challenge to the assessment of the fair market value of the alley space was the stronger.14
Our decision was to affirm the District Court's judgment on all issues premised on fee simple ownership of the alley by the United States, but to remand the case for modification of the judgment to avoid any prejudice to an action by appellants in the Court of Claims for recovery of the $196,200 on the theory that the United States lacked ownership.15 Now, on appellants' petition for rehearing, we adhere to that decision for reasons more fully delineated herein than before.
Appellants' contention that the United States lacked ownership of the subject alley upon closure has no proper place in this appeal. Throughout the proceedings before the City Council and later in the District Court, all parties believed that the United States had fee simple title to the alley space and acted accordingly. As a result, there was no effort to build a foundation in the record for judicial consideration, either in the District Court or here, of the hypothesis which appellants now advance.16 As ever so recently we stated, "our adjudicatory authority extends only to questions amply grounded in the record,"17 and that observation is fully apropos here. Numerous documents which are vital links in appellants' lack-of-title argument18 are completely outside the record before us, and "the evidentiary virtues appellant[s] attribute  to them cannot be left to mere assumption."19 Moreover, appellants' claim has never been tendered for, much less subjected to, adversary scrutiny in the crucible of an evidentiary hearing. If appellants are to litigate their newly-found theory, it must be done in another lawsuit.
Since we do not understand that appellants are in any wise abandoning their original approach in this litigation, we must consider the appeal on the predicate upon which the District Court ruled — that the United States did own the alley. We think the court was correct in its conclusion that appellants, who upon closure of the alley were permitted to acquire the alley space in fee simple, could properly be assessed its fair market value. The situation presented here is quite unlike that where the District of Columbia closes one of its own alleys, thereby causing the property to statutorily "revert to the owners of the abutting property."20 Where the alley closed belongs to the United States, the Street Readjustment Act provides, precisely contrarily, that "the property shall not revert to the owners of the abutting property."21 As the Court of Claims has explained, "there is no reversion to the property owners because neither they nor their predecessors in title owned the land on which the alley was established, but the title thereto was in the United States."22 In such instances, the Act explicitly confers upon the City Council an option: "the property . . . [(a)] may be disposed of . . . to the best advantage of the locality and the properties therein and thereby affected . . . or [(b)] also said property [may] be sold" unless its use is desired by a federal agency.23 The Act emphasizes that in the event that the second option is selected, the sale is for the account of the United States.24
Appellants insist, however, that the two statutory alternatives are mutually exclusive. They argue that where, as here, a United States alley is disposed of to the best advantage of the locality, the disposition must be free of charge. The District Court found this argument unacceptable,25 and so do we. In the first place, not only does the statutory language not suggest appellants' construction, but instead it quite plainly connotes the opposite. The Act states that the property may be disposed of without sale "or also [the] property [may] be sold";26 "also," in this context, naturally and popularly means "[i]n addition: as well: besides: too."27 And for even more impressive reasons, we are convinced that both of the options are exercisable simultaneously.
The Act empowers the City Council to close only "useless or unnecessary alleys."28 Abandonment of such an alley and sale of the public space into the private domain is usually calculated to foster real estate development in the area29 and thereby, in this very important sense, to work "to the best advantage of the locality and the properties therein and thereby affected."30 If, as appellants contend, compensation cannot be demanded where that advantage accrues, the statutory authorization of compensatory sales31 is well nigh negated. Whenever possible, a statute is to be interpreted so as to allow all of its parts to operate,32 and to avoid absurd results.33
Beyond that, we perceive no inconsistency between compensatory sales of United States alley space and the public weal in the larger sense. Beside enrichment of the public fisc through sale proceeds, closure of useless or unnecessary alleys invariably portends other advantages to the community at large. Maintenance costs are eliminated, as is liability for personal injury sustained on the space, and the realty-tax base is broadened.34 We are unwilling to assume that Congress did not have these valuable benefits in mind when it passed the Street Readjustment Act, nor can we believe that Congress had the federal interest any less at heart. As the District Court observed, the Act
distinguishes between United States and District of Columbia land and gives the City Council express authority to charge for United States property. Thus, it reflects a congressional purpose to allow the District of Columbia to consider the interests of the United States as well as its own interests when it disposes of Federal land. . . . Because this case involves an original United States alley the fact that advantages accrued to the District of Columbia by its closing does not preclude the District from adding conditions for the benefit and protection of the United States.35
We think, too, that appellants' construction of the Street Readjustment Act would bring it into unnecessary conflict with related legislation. Alley closings were originally authorized in 190136 by a statute, still extant,37 which is confined in operation to alleys and minor streets.38 Like the Street Readjustment Act,39 the 1901 Act provides that "[i]f the alley [closed] is not an original alley the title thereto shall revert to the owners of the land abutting thereon;"40 but it is the 1901 Act that contains the provisions relative to sale of United States alley space, which the Street Readjustment Act incorporates.41 "If the alley to be closed is an original alley," the 1901 Act ordains, "[the City Council] may sell the land contained therein for cash at a price not less than the assessed value of contiguous lots,"42 and "[a]ll money derived from [its] sale . . . shall be paid into the treasury of the United States . . . to the credit of the United States."43 Significantly, these provisions omit any reference to "the best advantage of the locality and the [nearby] properties."44
The Street Readjustment Act, enacted in 1932,45 extends the City Council's power of closure to all streets, roads and highways as well as alleys.46 Nonetheless, it expressly leaves the 1901 Act intact.47 Indeed, the Street Readjustment Act specifies that "in any case to which more than one of these laws is applicable, the . . . Council may elect the one under which . . . [it] will proceed."48 Statutes in pari materia are to be read together as if they were but one law,49 and both are to be given effect.50 Our duty to do that, and in the process to reject appellants' interpretation is thus clear.
There remains appellants' alternative claim that they cannot be made to pay for the alley space in question because, they say, the United States did not own the alley. As we have held, that claim, for lack of an underlying record, is not now before us,51 but that does not mean that it cannot be asserted in another fashion. There are, however, basic difficulties incidental to such an undertaking, and to these we now turn.52
One problem arises at the outset from the fact that this case was litigated and decided in the District Court exclusively on the theory that the alley space was property of the United States. The District Court's decision, adverse to appellants, was given effect by a judgment which was final in every sense of the word,53 and the court was not asked to reconsider or change it.54 So, in due course the judgment passed beyond the District Court's broad revisory jurisdiction55 and thereafter was substantively alterable by only two approaches.56 One, of course, is the present appeal, which, we repeat, is restricted to review of the judgment on the preexisting record and consequently does not reach appellants' new-evidence claim.57 The other is the methodology addressed by Federal Civil Rule 60(b),58 which leaves open two alternative routes to possible relief from adjudicative conclusiveness.59 While we are satisfied that the first is closed to appellants, it appears the second may not be.
Rule 60(b) empowers district courts to entertain motions seeking to relieve a party from a final judgment for either of six specified reasons.60 One is "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)."61 All Rule 60(b) motions are subject to the requirement that they "be made within a reasonable time,"62 and some, including those grounded on newly-discovered evidence, must in any event be made "not more than one year after the judgment . . . was entered . . . ."63 A motion by appellants to reopen the District Court's judgment would not survive the last demand, and might encounter trouble even with others.
We are not informed as to why the critical historical evidence, allegedly demonstrating that the United States did not own the alleys in question,64 could not with diligence have been unearthed sooner. Nor do we have a record on which we could determine satisfactorily whether appellants' memorandum, by which the title challenge was first made,65 followed promptly on the heels of their acquisition of that evidence.66 But it is indisputable that the memorandum was not filed until slightly more than a year after entry of the judgment.67 We see no elasticity in Rule 60(b)'s one-year time limit on the motions to which it applies;68 it is not judicially extendable,69 nor does an appeal from the judgment have the effect of tolling or enlarging it.70 And though the timing of such a motion is otherwise free from criticism, it fails if it falls outside the one-year period.71 It is thus evident that a Rule 60(b) motion to reopen the judgment would not be available to appellants.72
Rule 60(b) contains, however, a saving clause making clear, among other things, that it "does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding. . . ."73 This dispensation, while not an affirmative grant of power,74 preserves the historical authority of the courts of equity to reform judgments in special circumstances.75 The one-year limit on certain of the Rule 60(b) motions is inapplicable to the independent action,76 leaving it as the method — indeed, the only method — to be had by federal-court litigants whose remedy by motion has become time-barred.77
We are mindful that "the exception for equitable interposition by independent suit rests on `stringent' rules limited to circumstances `which render it manifestly unconscionable that a judgment be given effect.'"78 But we have recognized that iniquity in a judgment may sometimes be made to appear by evidence emerging after its rendition.79 To be sure, the power to upset judgments is to be exercised guardedly;80 as we have warned,
in an independent action seeking relief from a judgment on the basis of newly-discovered evidence and asking for a new trial the plaintiff must meet the same substantive requirements as govern a motion for like relief under Rule 60(b): he must show that the evidence was not and could not by due diligence have been discovered in time to produce it at trial; that it would not be merely cumulative; and that it would probably lead to a judgment in his favor.81
If, however, appellants can meet these conditions, the judgment of which they complain is not immune to judicial revision.
The further and final problem we encounter relates to where an independent action by appellants might be maintained.82 Two forums, in the alternative, have something to offer.83 The first is the District Court, which rendered the judgment and which ordinarily would be the preferred choice if indeed not the only one.84 Appellants' situation, however, is somewhat abnormal because of the relationship of the United States to the matter they wish to litigate. We refer, of course, to the doctrine of sovereign immunity; the United States cannot be sued without its consent,85 and no court has jurisdiction to entertain a suit against the United States save as it has consented to be sued therein.86 It is not at all clear to us that appellants could avoid difficulty on this account in the District Court, or how they would fare should they face it.
What appellants seek ultimately is recovery of $196,200, the conceded fair market value of the alley space closed, on payment of which the City Council conditioned the closure. Before resorting to the District Court, appellants deposited that sum in escrow pending a judicial determination of the Council's authority to impose that condition. It was because the monies were held under that arrangement, and not paid over to the United States, that the District Court concluded that appellants' action for a declaration as to the right to the escrowed fund was maintainable.87 Now, however, with our affirmance of the District Court's judgment against appellants,88 the situation may have changed radically.
The record discloses without controversy that the escrow was designed to await the conclusion of litigation over the right to the fund. We understand that in the event of a final judicial determination that the assessment of fair market value against appellants was valid, the fund is to be turned over to the District of Columbia for deposit in the United States treasury. But since the escrow agreement itself is not in the record on this appeal, we are unable to precisely gauge its effect in the present state of affairs.
From the common assumption, when the escrow was created, that the alley was United States property, was the judicial determination contemplated as the terminal point of the escrow a final decision of the issues as framed on that assumption? If so, was the judicial determination in mind the initial decision by the District Court, or this court's decision on appeal, or action by the Supreme Court following an application for further review? Or was it, rather, the parties' intention that the escrow arrangement was also to accommodate additional litigation, though not anticipated at the time, such as another effort by appellants on their new alley-ownership theory?
We pretermit, as we must, these questions in full realization that upon their resolution hangs the continued availability of the District Court as the forum for an independent action. For, without a doubt, the moment the escrowed fund is paid to the United States, should that occur, sovereign immunity will come into play and the jurisdiction of the District Court will cease.89 Nevertheless, because of our uncertainty as to the terms of the escrow, and because the decision is appellants', the District Court's judgment should be modified to leave the door open to an independent action in that court should appellants decide to attempt it.90
The alternative is the Court of Claims,91 and its availability likewise is dependent on the circumstances we cannot fully measure. We do not suggest that that court could entertain a new effort by appellants, similar to the earlier one, simply to secure a declaration of rights in an escrowed fund in which the United States is potentially interested.92 But at least if the fund should be paid over to the United States, jurisdiction would then accrue to decide whether appellants are entitled to its return,93 and the District Court's judgment should indulge appellants that option also.94 We understand that the United States does not contest jurisdiction in the Court of Claims to entertain a suit to recover the compensation exacted if the United States does not have title.95 Otherwise we would consider whether the interests of justice would not require us to remand to the District Court to consider the claim that the United States does not have title rather than remit the parties to a perhaps nonexistent remedy.96
We affirm the judgment appealed from, but without prejudice to an independent action by appellants for relief therefrom. We remand the case to the District Court for a modification of its judgment making plain that it is without prejudice to any future action in that court or in the Court of Claims seeking a return of the $196,200 fund on the ground that the United States lacked title to the alley in question at the time of its closing. We modify our previous judgment slightly to accord this disposition, and deny the petition for rehearing.97