A squabble over a procedural deadline will test the limits of “plain language” textualism
on Apr 18, 2022 at 1:34 pm
Plain language versus structure. That’s the debate the parties offer the court Tuesday morning in Kemp v. United States. The case involves a small detail of the Federal Rules of Civil Procedure – the correct pigeonhole in Rule 60(b) for an argument that a judge incorrectly dismissed an earlier proceeding.
To explain, Rule 60(b) is the place you go in the federal rules if a judgment has been entered against you incorrectly. In this case, for example, Dexter Earl Kemp filed a motion under 28 U.S.C. § 2255 asking a federal district court to overturn his federal criminal conviction for drug and firearm offenses. The court, following the advice of the government, calculated the deadline incorrectly and dismissed the motion as untimely. All agree that Kemp’s motion in fact was timely; the court erred when it dismissed that motion. The question is how Rule 60(b) applies to Kemp’s effort to correct the undisputed error.
Rule 60(b) starts by providing that a “court may relieve a party … from a final judgment” for reasons listed in six numbered paragraphs. The first paragraph, 60(b)(1) allows relief for “mistake, inadvertence, surprise, or excusable neglect.” The second through fifth allow relief for reasons not relevant to Kemp. The last, 60(b)(6), is a catch-all, which permits relief for “any other reason that justifies relief.”
The government believes that Kemp’s effort to undo the district court’s error should be analyzed under 60(b)(1). Kemp thinks that 60(b)(6), not 60(b)(1), applies. The distinction is important because motions for post-judgment relief under 60(b)(1) have a one-year deadline, but motions under 60(b)(6) have no firm deadline. Kemp filed his Rule 60(b) motion 21 months after the district court entered its judgment based on the legal error. So while all agree that Kemp’s original motion for post-conviction relief under Section 2255 (the federal habeas statute) was timely, the parties dispute whether he filed his subsequentRule 60(b) motion (seeking to correct the district court’s judgment) on time. The answer depends on whether 60(b)(1) or 60(b)(6) applies to that subsequent motion.
The government pitches a plain-language argument, contending that the dictionary definition of “mistake” (the first of four terms in 60(b)(1)) includes any and all errors of any kind, whether made by the person seeking relief or by the court. That is, to be sure, not an unreasonable reading of the word “mistake.”
Kemp, by contrast, contends that such a broad reading of “mistake” makes a hash of the structure of Rule 60(b). Kemp reads 60(b)(1) as limited to factual mistakes made by the claimant, rather than legal errors that a court might make. For example, if a plaintiff does not appear for a court hearing because plaintiff’s counsel misunderstood the date of the hearing, Kemp would treat that as a 60(b)(1) mistake. The mistake here – a miscalculation of filing deadlines – should come only under 60(b)(6). Kemp makes several structural arguments to counter the government’s reading of “mistake.”
Two arguments involve the text of 60(b)(1) itself. First, the phrase “mistake, inadvertence, surprise, or excusable neglect” was taken verbatim by the rule’s drafters from state laws that applied it to include only factual errors. Second, the other three items in 60(b)(1) (“inadvertence, surprise, or excusable neglect”) plainly describe factual rather than legal errors, which suggests that it would be odd for “mistake” to be read to be so much broader than the other terms. Similarly, “inadvertence, surprise, or excusable neglect” sound like mistakes by the party, not by the court. It would be strange for the parallel term “mistake” broadly to cover judicial errors in the same series.
The most powerful arguments Kemp presents rely on the other provisions of Rule 60(b). Kemp points out that the rule has a non-extendable one-year deadline for the errors in 60(b)(1)-(3) – all of which (under his reading) are fact-intensive non-legal errors, but a more lenient “reasonable time” standard for legal errors described in 60(b)(4)-(6). The government’s reading would remove any logic from that arrangement – because under the government’s broad reading all of the errors described in any of the subsections would be “mistakes” for which relief would be available under 60(b)(1). Indeed, there would be no need for any of the terminology in 60(b)’s several provisions beyond the reference to mistake, as even the other terms in 60(b)(1) would count as “mistakes” under the government’s reading.
When a dictionary-based “plain language” argument is battling an argument from structure and overall plan of the rule, you might think that plain language is almost always going to win the day. This case, though, seems to present some compelling arguments for reading the entirety of Rule 60(b) before coming to rest on the meaning of 60(b)(1). It will be interesting to see what the justices think.