Timing of Corrections

Timing of Corrections

Rule 60(a) speaks to timing in two sentences that point in different directions. The first lets the court correct a clerical mistake, or a mistake arising from oversight or omission, “whenever one is found,” and it sets no deadline.¹ The last sentence limits the power once the case reaches a higher court: “after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.”² Together they give the correction power no clock of its own and a single boundary, drawn at the appellate docket.

A judgment is a document that people rely on, appeal from, and enforce, so a correction made months or years after entry has to be measured against every clock that runs from the original judgment. A correction made while the judgment is under review has to be measured against the authority of the reviewing court. Three questions follow: whether any deadline limits the power, whether a correction restarts the time to appeal, and which court may act once an appeal is pending. The answers all depend on the characterization problem from the earlier sections. A true clerical correction conforms the paper to a decision the court has already made and takes nothing from a party who relied on the original text, so the rule can dispense with a time limit and the correction leaves other clocks undisturbed. The limit during an appeal rests on a different feature, the shift of authority over the case from one court to another.

No Deadline

Rule 60(a) lets a court correct a clerical mistake or a mistake arising from oversight or omission “whenever one is found” in a judgment, order, or other part of the record, and nothing in the rule sets a deadline.³ The words tie the power to discovery of the error, so the days or years since entry of judgment do not enter the analysis. A court can correct a clerical error at any time, even after judgment has been entered.⁴ That openness sets Rule 60(a) apart, because every other route for changing a judgment in the trial court runs on a clock. After entry of judgment, a party who asks the court to change the result meets these limits, and only the last route is free of any deadline:

• A motion to alter or amend the judgment under Rule 59(e) must be made within 28 days after entry of the judgment.⁵
• A Rule 60(b) motion based on mistake, inadvertence, surprise, or excusable neglect, on newly discovered evidence, or on fraud must be made within a reasonable time and no more than a year after entry.⁶
• A Rule 60(b) motion on the remaining grounds, such as a void judgment or any other reason that justifies relief, escapes the one-year cap but must still be made within a reasonable time.⁷
• A correction under Rule 60(a) may be made whenever the mistake is found, with no deadline.⁸

Once the 28 days have run, a judgment may be attacked, other than by appeal, only as Rule 60 provides. Rule 60 sorts the grounds by how much of the court's decision they would disturb: clerical mistakes arising from oversight or omission may be corrected at any time, on motion or on the court's own initiative, while the other grounds face stricter limits.⁹

The reason lies in what a clerical correction takes from the other side. Ordinary post-judgment clocks protect a winner who has arranged its affairs around the judgment as entered, because once the window closes the winner can count on keeping what the court gave. A clerical correction takes nothing the court gave, since it restores the paper to what the court decided, and a party who relied on the slip relied on something the court never decided. A deadline would also cut the other way, because an error discovered in the third year, perhaps during enforcement, would stay frozen in the record even though everyone knew the paper did not state the decision. Commentary on federal practice draws the same line. Correction is a ministerial procedure that does not require the judgment to be formally reopened or the case to be retried, and in most systems it may be done at any time, whereas altering a judgment because some element was omitted is limited in the federal courts to 28 days, in recognition that the change may be more substantial.¹⁰

The same openness explains why the clerical label draws so much scrutiny. A movant who has missed every clock has one door that never closes, and a request to change the substance of a judgment gains a great deal by being described as a typographical fix. Because a deadline cannot police the rule, the contemporaneous-intent test from earlier in this chapter does the policing. A late motion should therefore not be analyzed by asking whether it is timely, since under Rule 60(a) that question has no answer. The question is whether the record shows a mistake in the paper or a change of decision. If it shows a mistake, the lateness is irrelevant. If it shows a change of decision, the motion is a Rule 59(e) or Rule 60(b) motion in disguise, and the clocks that Rule 60(a) lacks apply in full: 28 days for the amendment motion, and a reasonable time not exceeding a year for the first three Rule 60(b) grounds.

Effect on Appeal Deadlines

Rule 60(a) says a court may correct a mistake “whenever one is found,” but its text does not say what a correction does to the clocks that run from the original judgment.¹² That silence matters because every appeal deadline and post-judgment-motion deadline is measured from entry of a judgment, and a correction produces a second paper. If the amended judgment counts as a new judgment, the clocks begin again, and if it only repairs the first, they keep running from the original date. The difference decides cases when a party has let the original deadlines pass, since the amendment is then its only route to a timely appeal.

Rezzonico shows how courts answer. A motion to amend the judgment can have a tolling effect on the time to appeal, but “to receive the benefit of this tolling effect, the appealing party must file the amending motion within ten days of the entry of the underlying judgment.”¹³ The opinion speaks of ten days, while the Rule 59(e) period described above is 28 days, and the analysis is the same with the longer figure.¹⁴ The window runs from the underlying judgment, so a party who is late on that measure has one way back: to show that the amended judgment reset the clock.

The test for resetting the clock comes from FTC v. Minneapolis-Honeywell Regulator Co., which Rezzonico quotes. The period within which an appeal must be taken begins to run anew “[o]nly when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered,” and “[t]he test is a practical one.”¹⁵ The two triggers fit one idea. A new period makes sense when the party now faces a judgment different from the one it had notice of. A change of substance gives it something new to contest, and a genuine ambiguity leaves it unable to know what to contest until the court resolves the question. A purely clerical fix gives it nothing new to react to.

In Rezzonico the parties had contested whether the Rezzonicos were entitled to a discounted royalty rate provided in their franchise agreement. An amended judgment then added the word “not,” and the Rezzonicos argued that the addition “effected a material change in the judgment” and restarted their time to file the notice of appeal and any tolling motions. Block, the opposing party, answered that the amendment simply corrected a clerical error.¹⁶ The reviewing court sided with Block. The omission, considered by itself, “concededly changed the meaning of the sentence,” but the district court's memorandum and order, together with the preceding sentence in the judgment, made clear that the appellants were not permitted to take advantage of the discounted rate. The amended judgment therefore did not restart the time to appeal or to file tolling motions.¹⁷

Two features of that holding carry over to new facts. The effect of the correction on the literal wording does not decide the question: the missing word changed the sentence, yet the memorandum and the neighboring sentence had already answered what the word obscured, so no genuine ambiguity remained for the amendment to resolve. And the Rezzonicos learned nothing from the amendment that the original judgment and memorandum had not already told them. This is the characterization question from the earlier sections applied to a new consequence, and it fits the no-deadline rule: the court may repair its paper at any time, and the repair leaves untouched the clocks the original judgment started.

The difference from Rezzonico is the work the record did. There, the memorandum and the neighboring sentence of the judgment answered the question the missing word obscured. Here neither paper answered who owed what, so the amendment gave the parties a decision they could not have contested before.

Corrections During an Appeal

Rule 60(a) ends with a sentence that limits the correction power once the case reaches a higher court: “But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.”¹⁹ Until then the district court may fix a clerical mistake on motion or on its own, with or without notice, and without anyone's permission. The sentence therefore adds a consent requirement at one stage and leaves the rest of the rule as the earlier sections described it.

The sentence qualifies an exception to a more general rule. A federal district court loses control over the aspects of a case that are on appeal when the appellant files a notice of appeal, which “confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”²⁰ The rule serves practical ends, namely judicial economy and avoiding a “two front war,” and it is neither technical nor absolute but a “creature of judicial prudence.”²¹ Rule 60(a) is one place where the rules relax it, by letting the district court keep doing a narrow kind of work after the appeal begins, subject to the leave requirement once the appeal is docketed.²²

The purposes of the general rule also explain the leave requirement. If two courts could act on one judgment at once, the parties would fight on two fronts about a single decision, and the judgment under review could change while the court of appeals studied it. A correction that conforms the paper to a decision already made leaves the questions on appeal where they were, so before the appellate court has taken up the record a clerical fix disturbs nothing anyone relies on. Once the appeal is docketed, the court of appeals works from a particular record, and the leave requirement lets it confirm that a supposedly clerical change will not disrupt the issues before it.

The line falls at docketing in the appellate court, which comes after the notice of appeal is filed in the district court. Divestiture begins with the notice, but Rule 60(a) carries its own timetable, and its words, not the general statement, fix when leave becomes necessary. A different formulation of the rule, quoted in an opinion footnote, drew the same line by permitting correction “before the appeal is docketed in the appellate court” and afterward “with leave of the appellate court.”²³ A parallel rule text quoted in another opinion has the same two stages.²⁴ The federal restriction also speaks of an appeal that “is pending,” so the leave requirement is tied to that period.²⁵

The leave provision reaches only “such a mistake,” meaning a clerical mistake or one arising from oversight or omission, so appellate leave cannot turn a substantive change into a correction.²⁶ A district court acts under Rule 60(a) only when it is “truly just correcting a clerical error,” and that is what lets it act at any time without notice or hearing.²⁷ A court that describes a changed decision as a correction after the appeal begins gets no help from the exception. The contemporaneous-intent test taught earlier therefore does double duty once an appeal is pending: it decides whether the change is clerical, and it decides whether the district court had any authority to act.

A party who wants a change that Rule 60(a) cannot supply still has a route. When a motion for relief is brought while a judgment is on appeal, the district court may deny it or, if inclined to grant it, indicate that inclination and allow the movant to apply to the court of appeals for a remand order.²⁸ Rule 62.1 and Federal Rule of Appellate Procedure 12.1 govern that limited remand, and in many courts a formal Rule 62.1 motion is not a prerequisite when the district court has already indicated that it would grant the requested relief. The Ninth Circuit followed that approach in Mendia v. Garcia because it promoted the judicial efficiency underlying FRAP 12.1.²⁹ The indicative ruling is thus the route for a change of decision, while Rule 60(a) is the route for conforming the paper to a decision already made, and after docketing it runs only through the appellate court's leave.