Paul Ferrer, Senior Attorney, National Legal Research Group, Inc.
Rule 60(b) of the Federal Rules of Civil Procedure authorizes a court to relieve a party from a final judgment, order, or proceeding for various reasons, including “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). The U.S. Circuit Courts of Appeal have had a “longstanding disagreement whether ‘mistake’ in Rule 60(b)(1) includes a judge’s errors of law.” Kemp v. United States, 142 S. Ct. 1856, 1861 & n.1, 213 L. Ed. 2d 90 (2022). Resolving that question in Kemp, the U.S. Supreme Court held, based on the text, structure, and history of Rule 60(b), that “a judge’s errors of law are indeed ‘mistake[s]’ under Rule 60(b)(1).” Id. at 1860. In so holding, the Supreme Court indicated that the term “mistake” in Rule 60(b)(1) should be given its broadest possible interpretation to include any mistake, including “all mistakes of law made by a judge.” Id. at 1862.
The Supreme Court specifically rejected the Government’s narrower reading of Rule 60(b)(1) in Kemp that the term “mistake” includes “only so-called ‘obvious’ legal errors.” Id. The Supreme Court’s decision sensibly spared the federal district courts from having “to decide not only whether there was a ‘mistake’ but also whether that mistake was sufficiently ‘obvious,’” since the plain language of Rule 60(b)(1) “does not support—let alone require—that judges engage in this sort of complex line-drawing.” Id. at 1863. Thus, the rule going forward could not be any simpler: relief from a final judgment or order may be granted under Rule 60(b)(1) based on a judge’s “mistakes,” including legal errors.
Having settled that a judge’s legal error constitutes a “mistake,” the Supreme Court also held that a Rule 60(b)(1) motion seeking relief based on a judge’s mistake must be made “within a reasonable time,” which “may not exceed one year.” Id. at 1861 (quoting Fed. R. Civ. P. 60(c)(1) (“A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order[.]”)). The Supreme Court declined to explicitly “define the ‘reasonable time’ standard” in Kemp but did note that the Circuit Courts “have used it to forestall abusive litigation by denying Rule 60(b)(1) motions alleging errors that should have been raised sooner (e.g., in a timely appeal).” Id. at 1864 (citing Mendez v. Republic Bank, 725 F.3d 651, 660 (7th Cir. 2013)). In Mendez, the Seventh Circuit opined that “a Rule 60(b) motion filed after the time to appeal has run that seeks to remedy errors that are correctable on appeal will typically not be filed within a reasonable time.” 725 F.3d at 660. In other words, the Supreme Court signaled in Kemp, an 8-1 decision, its likely agreement with the application of the “reasonable time” requirement in Rule 60(c)(1) “to prevent Rule 60(b) from being used to evade the deadline to file a timely appeal.” Id. That deadline is just “30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A).
Justice Gorsuch, the lone dissenter in Kemp, decried that the Court’s decision would turn “every judicial legal error—not just an inadvertent or obvious ‘mistake’—[into] fodder for collateral attack under Rule 60(b)(1).” Kemp, 142 S. Ct. at 1866 (Gorsuch, J., dissenting). But Justice Gorsuch seems to have missed the ramifications of the majority’s “reasonable time” discussion. While more Rule 60(b)(1) motions based on a “judicial legal error” might be forthcoming, they will likely now be limited to what are essentially motions for reconsideration filed within 30 days of the district court’s decision. After that, a final decision will forever be protected from “collateral attack under Rule 60(b)(1)” based on such an error. Moreover, the Federal Rules already provide for a motion for reconsideration—styled as a “motion to alter or amend a judgment”—to be filed within 28 days after entry of the judgment. Fed. R. Civ. P. 59(e). Thus, the majority decision in Kemp basically trades a paltry two extra days to bring a motion for reconsideration for doing away with just about any opportunity to attack a district court’s legal mistake after 30 days, except through a timely filed appeal.
