This Report summarizes opinions issued on June 13, 2022 (Part I).
Opinion: Kemp v. United States, 21-5726
Kemp v. United States, 21-5726. In an 8-1 decision, the Court held that the term “mistake” in Federal Rule of Civil Procedure 60(b)(1) includes a judge’s errors of law. Dexter Kemp and seven codefendants were convicted of various federal crimes. The Eleventh Circuit consolidated their appeals and affirmed the convictions in November 2013. Kemp did not seek rehearing or petition for certiorari, but two codefendants sought rehearing, which was denied in May 2014. In April 2015, Kemp moved to vacate his sentence. The Government argued that the motion was untimely because under 28 U.S.C. §2255 such motions must be filed within one year of the date on which the judgment becomes final, which is usually 90 days after the judgment is affirmed on appeal if the defendant does not petition for certiorari. The district court dismissed Kemp’s motion as untimely in September 2016, and Kemp did not appeal. In June 2018, Kemp sought relief under Rule 60(b). He correctly pointed out that the 90-day clock to determine finality of a judgment does not begin to run until all parties’ petitions for rehearing are denied. Since his codefendants’ petitions for rehearing were not denied until May 2014, his judgment was final in August 2014, and his April 2015 §2255 motion timely because it was filed within one year. The Government argued that Kemp’s 2018 Rule 60(b) motion itself was untimely because a claim of “mistake” under Rule 60(b)(1) is subject to a one-year limit under Rule 60(c)(1). Kemp argued that “mistake” does not include legal errors by a judge such as the timeliness issue here, and that the court should apply the catchall provision in Rule 60(b)(6)―which is not subject to a one-year limit―which permits reopening for “any other reason that justifies relief.” The district court and Eleventh Circuit concluded that Kemp’s 2018 motion alleged a “mistake” under Rule 60(b)(1) and was therefore untimely. The Court affirmed in an opinion by Justice Thomas.
The Court observed that the ordinary meaning of “mistake” includes a judge’s legal errors; a “mistake” is not generally limited to factual misunderstandings or non-judicial actors. The history of Rule 60(b) confirms this interpretation. When Rule 60(b)(1) was adopted, the difference between “mistake of fact” and “mistake of law” was well known, yet the drafters used the term “mistake” without qualification. When first adopted in 1938, the Rule referred to “his” mistakes, meaning mistakes by a party rather than a judge. In 1946, however, the word “his” was deleted, thereby removing any limitation on whose mistakes qualified. Thus, found the Court, “mistake” includes legal errors made by judges. The Court discounted the Government’s argument that the rule was limited to “obvious” mistakes. Although some courts have applied an “obviousness gloss,” neither the text nor history of the Rule limits it to “obvious” mistakes.
Based on this text and history, the Court rejected Kemp’s argument that Rule 60(b)(1) applies only to factual errors made by someone other than the judge. The Court also rejected Kemp’s argument that the other grounds for relief in Rule 60(b)(1)―“inadvertence, surprise, or excusable neglect”―involve non-legal and non-judicial errors, and that “mistake” should be interpreted similarly. Courts have long found that excusable neglect may involve legal error and that relief may be granted due to judicial inadvertence. The Court also rejected the argument that its interpretation would create confusing overlap with Rule 60(a), which authorizes courts to correct clerical mistakes, or Rules 60(b)(4) and (b)(5), which authorize relief from judgments that are void or lack legal effect. The Court was unpersuaded that its interpretation would allow litigants to “repackage” otherwise untimely claims as timely claims under Rule 60(b)(1); indeed, under Kemp’s interpretation, a party could repackage untimely claims as timely under Rule 60(b)(6). The Court was confident that Rule 60(c)’s requirement that all motions be made within a “reasonable time” suffices to forestall such abusive litigation tactics.
Justice Sotomayor concurred, writing separately to make two points. First, the Court did not alter the availability of Rule 60(b)(6) to reopen a judgment “in extraordinary circumstances, including a change in controlling law.” Second, she did not interpret the Court’s opinion as addressing Rule 60(c), which requires all Rule 60(b) motions to be made within a reasonable time.
Justice Gorsuch dissented, arguing that the writ of certiorari was improvidently granted. He opined that the difference between Rule 60(b)(1) and (b)(6) only matters in the rare circumstance when a losing party fails to appeal or secure relief under another rule, then files a Rule 60(b) motion more than a year later, yet still within a “reasonable” time. Justice Gorsuch noted that an alternative route exists to resolve any question about the Rule’s scope: Under the Rules Enabling Act, a committee may recommend any warranted clarifications to the Federal Rules of Civil Procedure, and the Court may approve them. Thus, Kemp’s case did not meet the Court’s usual standards for review. On the merits, Justice Gorsuch criticized the Court for largely relying on the “mysterious” deletion of the word “his” in 1946, and for adopting a position on “obvious” error that neither party advanced.