OPINION ANALYSIS

Procedural rule for correcting “mistakes” applies to all mistakes, legal or factual

Monday’s opinion in Kemp v. United States provided what the argument suggested: a straightforward decision that reads Rule 60(b) of the Federal Rules of Civil Procedure to mean just what it says.

Rule 60(b) is the rule that allows you to get relief from an incorrect judgment, and it seems pretty clear that the judgment here was incorrect. The order held untimely a motion of Dexter Earl Kemp seeking to overturn a conviction under 28 U.S.C. § 2255, but all accept that the judge miscalculated the deadline for filing that motion. The question for the justices was what provision of 60(b) governs Kemp’s effort to correct that miscalculation.

If the judge’s miscalculation is “mistake, inadvertence, surprise, or excusable neglect,” then Kemp had to file under Rule 60(b)(1), which requires a filing within a year. Kemp’s filing was far beyond that deadline. If the judge’s miscalculation is not a “mistake” under Rule 60(b)(1), then it is covered by the catch-all in 60(b)(6), which applies to “any other reason” and allows filings “within a reasonable time,” without the one-year deadline.

All the justices who addressed the question agreed that the miscalculation was a “mistake.” The only dissent was from Justice Neil Gorsuch, who thought the case did not warrant the Supreme Court’s attention, preferring that the court leave any treatment to an advisory committee that recommends changes to federal rules.

Justice Clarence Thomas disposed of the matter with his characteristic brevity and directness. He started with the proposition that “[t]he ordinary meaning of the term ‘mistake’ … includes a judge’s legal error,” citing a variety of dictionaries contemporary with the rule’s adoption, including one that defined “mistake” to include “a mistake in calculation.” He also noted that the difference between errors of fact and errors of law was common when the rule was drafted. Finally, he noted that the rule originally referred to “his” mistake (that is, the party’s mistake), which would have excluded errors by the judge, but was revised to “delet[e] the word ‘his,’ … removing any limitation on whose mistakes could qualify.”

Thomas then offered a few pages rejecting the contrary views of the parties. For its part, the government argued that 60(b)(1) should be limited to “obvious” legal mistakes (like this one). Thomas was “unconvinced,” pointing out that “this ‘obviousness’ gloss” was absent from the contemporary dictionaries and repeating concerns expressed at the argument about “the administrability of a rule that requires courts to decide not only whether there was a ‘mistake’ but also whether that mistake was sufficiently ‘obvious.’”

Finally, Thomas rejected Kemp’s argument that 60(b)(1) should be limited to factual rather than legal errors. Among other things, he downplayed Kemp’s arguments that a broad reading of 60(b)(1) to include all mistakes raised the prospect that the provision would overlap coverage of other provisions in 60(b) and elsewhere. Thomas noted both that courts had not experienced difficulty in resolving those issues in the past, and that Kemp’s own reading would create similar overlaps.

The strongest argument in Kemp’s brief was that the text of 60(b)(1) mirrored the language of existing state procedural rules that treated the language as a “‘term of art’ that excluded legal errors.” Thomas acknowledged that several states did interpret their rules that way, but noted that others (including California) did not. Because the interpretation Kemp pressed was not “well-settled” when 60(b)(1) was drafted, Thomas reasoned that it should not govern the meaning of 60(b)(1) today.

It may seem odd in a case of such minor continuing importance that the justices would adopt an interpretation pressed by none of the parties. As explained in my argument analysis, several of the justices came to the argument pressing the interpretation adopted here – which had been offered in a famous lower-court opinion by Judge Henry Friendly, for whom Chief Justice John Roberts clerked early in his career. Ultimately, it seems, the justices were more persuaded by the logic of Friendly’s opinion than they were by the arguments in the briefs before them.