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In a dispute over the meaning of a procedural rule, justices seem settled: “Mistake” means “mistake”

Kemp v. United States was an unusual argument, as the justices seemed to come to the bench resolved to settle the case with an answer proposed by neither of the parties.

Kemp asks the Supreme Court to interpret Rule 60(b), which is the rule that allows you to get relief from an incorrect judgment. All agree that the judgment here was incorrect. The district judge held that Dexter Earl Kemp’s motion seeking to overturn a drug and firearms conviction under 28 U.S.C. § 2255 was untimely; all agree that the judge miscalculated the deadline and that Kemp’s 2255 motion was filed before the deadline.

Rule 60(b)(1) says that Kemp could ask the judge to retract the erroneous ruling on his 2255 motion if it was based on “mistake, inadvertence, surprise, or excusable neglect.” The problem with that rule is that you have to file that motion “no more than a year after the entry of the judgment,” and Kemp’s request for the judge to retract the erroneous 2255 decision did not make that deadline. Rule 60(b)(6), on the other hand, permits relief for “any other reason” and allows filings “within a reasonable time,” without the one-year deadline. So Kemp would have a chance of relief if his filing falls under 60(b)(6), but not if it falls under 60(b)(1).

As my preview explains, Kemp argues that the error in his case was not a “mistake,” because that covers only factual mistakes, not legal mistakes; that reading would bring his claim under 60(b)(6), and thus make it timely. The government argues that misreading a statutory deadline is a “mistake” by any reading of the rule. For the government, “obvious” legal errors like the one in this case fall comfortably within 60(b)(1)’s reference to a “mistake,” bringing Kemp’s filing under 60(b)(1). That argument would make the filing untimely.

The debate at the oral argument, though, was not between Kemp’s reading and the government’s reading. Rather, the debate was between the government’s reading and another reading – the reading articulated by Judge Henry Friendly in early decisions of the U.S. Court of Appeals for the 2nd Circuit, where Friendly sat for many years. (To provide some context, Friendly was one of the most distinguished judges of the 20th century, commonly described as the greatest judge of his era; Chief Justice John Roberts served as one of his law clerks.)

The problem for Andrew Adler was apparent early in his argument (on behalf of Kemp). Justice Brett Kavanaugh was not interested in testing Adler’s theory, or even the government’s theory. Rather, he asked about “the Judge Friendly position, … more the ordinary meaning of ‘mistake,’” under which “‘mistake’ can mean a mistake of law.” Kavanaugh noted that Professor James William Moore, the author of a prominent treatise on federal practice, also adopted that interpretation.  

When Adler argued that Friendly “was wrong,” in part because his reading would lead to overlapping coverage of legal errors, Kavanaugh responded that “it’s been workable in the 2nd Circuit and several other circuits for a long time.” Roberts quipped: “And it’s not that surprising that Judge Friendly may not be very familiar with mistakes of law.”

To the extent the justices addressed Adler’s position at all, they were briskly dismissive of his proposed distinction between factual errors (covered by 60(b)(1) as mistakes) and legal errors (covered only by 60(b)(6) as other reasons for relief). Justices Amy Coney Barrett and Stephen Breyer both remarked on the great “difficulty of distinguishing between fact and law.”

Justice Sonia Sotomayor’s interchange with Adler also ignored Adler’s position, framing the case the same way as Kavanaugh. For her, “the circuits are all over the place,” with a few “go[ing] the government’s way” and most following Friendly’s rule.

When Benjamin Snyder appeared (representing the government), the only pushback on his position was on the question of whether there was any good reason to reject the simpler Friendly reading (under which “mistake” means “mistake”), in favor of the government’s more nuanced view that in the context of legal errors, “mistake” is limited to “obvious mistake.” Kavanaugh, for example, asked “Why would we do that? It just seems like asking for a whole lot of litigation about the difference between an obvious mistake [and a mistake that is not obvious.]” For him, the central question was straightforward: “Why is it worth doing this rather than just the 2nd Circuit approach?”

Justice Stephen Breyer approached the case from the same vantage point, summarizing the circuit conflict and asking Snyder to explain why he “lean[s] in the opposite direction,” recognizing that Snyder would “win regardless.” When Snyder pointed to the possibility of “procedural messiness” from the overlap in the Friendly reading, Kavanaugh interrupted to ask: “Has that happened in the 2nd and other circuits?” Snyder admitted that he couldn’t “point to any significant disruption.”

The strength of the justices’ predisposition was underscored by the brevity of the argument: only 43 minutes. To compare – the justices spent 76 minutes hearing argument in the 11 o’clock case on the preceding day, Siegel v. Fitzgerald, which is far from a high-profile case itself.

There is always uncertainty about what will happen when the justices return to their chambers to produce opinions, but not a single justice seemed to take Kemp’s argument seriously. This plainly seems to be a case taken to resolve a circuit conflict, and it pretty clearly was a bad vehicle to do so, because the government would prevail under either of the leading lower-court rules. Fortunately for those interested in clarity of procedural rules, the argument suggests that the justices are more interested in resolving the conflict than hearing another argument in a later year on the same rule. I expect that we will get a succinctly phrased opinion answering the question sometime in the next six weeks.

Recommended Citation: Ronald Mann, In a dispute over the meaning of a procedural rule, justices seem settled: “Mistake” means “mistake”, SCOTUSblog (Apr. 20, 2022, 9:51 AM),