By Christopher D. Bryan, Garfield & Hecht, P.C.
On June 13, 2022, the United States Supreme Court released its decision in Kemp v. United States,holding, 8-1, that the term “mistake” in Federal Rule of Civil Procedure 60(b) includes judges’ errors of law. This holding clarified the meaning of “mistake” as it relates to Rule 60(b)(1), which allows litigants to seek relief from erroneous final judgments.
The case arose after a federal district court judge miscalculated the filing date, dashing Dexter Earl Kemp’s hopes to overturn a drug and firearms conviction. On November 15, 2013, the United States Court of Appeals for the Eleventh Circuit affirmed a federal district court judgment convicting Kemp and several codefendants. Kemp and codefendants filed two successive motions for an extension of time to file a petition to rehear the case, which was granted. Two codefendants filed a petition for a rehearing en banc, which Kemp did not join.
Kemp sought relief from the judge’s error under Rule 60(b), although it was unclear whether his motion should be analyzed under Rule 60(b)(1) or 60(b)(6). Rule 60(b)(1) applies to any mistake challenged within the one-year deadline. Rule 60(b)(6) offers a catch-all for “any other reason,” not restricted by a firm deadline and only available when other Rule 60(b) grounds for relief are inapplicable. Kemp argued that both history and structure show that mistake is a term of art that refers only to factual errors made by a party as opposed to a judge. Just over a year later, Kemp moved to vacate his sentence and was denied for untimely filing. On June 22, 2018, Kemp moved to reopen proceedings under Rule 60(b), alleging that his petition would have been timely if not for judicial error.
Justice Clarence Thomas rejected this argument in his majority opinion. “Mistake” in Rule 60(b)(1) includes a judge’s mistake regardless of whether it is analyzed through its ordinary or legal meaning. Long story short, it was too late for Kemp because the district court judge’s error had to be addressed in the same time frame as an error by a party or the party’s legal counsel. So now attorneys have to be diligent not only as to mistakes by an opposing party or their counsel, but also as to mistakes by judges. Justice Thomas asserted that had the drafters of Rule 60(b)(1) intended a narrower meaning, they would have simply drafted language to that effect. The terms “mistake of fact” and “mistake of law” were well-established at the time of drafting and could have been utilized to restrict the scope of “mistake” instead of leaving the word unqualified. Justice Thomas wrote, “Nothing in the text, structure, or history of Rule 60(b) persuades us to narrowly interpret the otherwise broad term ‘mistake’ to exclude judicial errors of law.” Because Kemp’s Rule 60(b) motion alleged a judicial error, the Supreme Court affirmed the Eleventh Circuit’s judgment that the motion was perceptible under Rule 60(b)(1) and therefore untimely under the one-year limitations period.
Justice Sotomayor wrote in concurrence to note that the majority opinion does not serve to disturb settled precedents allowing a claimant to reopen a judgment in “extraordinary circumstances” under Rule 60(b)(6). She further wrote that the Kemp opinion does not offer new standards by which the “made within a reasonable time” provision of Rule 60 should be applied.
Justice Neil Gorsuch dissented, suggesting instead that Kemp did not meet the Supreme Court’s stringent standards for discretionary review. His criticism arose from the novel nature of the question, noting that the petitioner is the first petitioner to ever raise this question for review. Rather than expend judicial resources on such a case, Justice Gorsuch contended that this issue is better suited for resolution through the rulemaking process, citing the Rules Enabling Act in particular. He intimated that the case should have been dismissed or should not have been accepted for certiorari in the first place.
The Supreme Court’s ruling in Kemp may affect litigants in federal court who need to seek legal redress for “mistakes” under C.R.C.P. 60(b). Under Kemp, a judge’s error counts as a “mistake” that is subject to deadlines imposed by Rule 60(b)(1). Litigants will want to keep this in mind as they consider how to seek judicial remedies to judge-made mistakes, including keeping all avenues open to them, including post-judgment rulings and appeals.
Litigators at Garfield & Hecht, P.C. handle a wide array of civil matters in both federal and state court, including trials and appeals. Contact the firm’s Litigation Dept. chair, Christopher D. Bryan (cbryan@garfieldhecht.com) for more information.
