Alternatives to Rule 60(a)

Alternatives to Rule 60(a)

Rule 60(a) reaches only “a clerical mistake or a mistake arising from oversight or omission,” so a litigant with any other complaint must find another door.¹ The correction power can run without a deadline, a motion, or notice because it is narrow: the court repairs the record of a decision and does not revisit the decision. A party who says the court decided the matter wrongly, or that an award should have been larger or smaller, attacks the decision itself. The federal rules send that attack through procedures that ask more of the movant than Rule 60(a) does.

Two of those procedures are easily mistaken for a correction: the grounds for relief from a final judgment in Rule 60(b), and the motion to alter or amend a judgment under Rule 59(e). Appeal is a third route, which this chapter does not develop. The comparisons that follow rest on one idea. A request that reopens the decision must meet a deadline and carry the movant’s burden, and a request that only repairs the paper must meet neither. Because the clerical label escapes both demands, courts decide for themselves whether a request has earned it.

Rule 60(a) Versus Rule 60(b)

Rule 60(b) answers the complaint that the court’s decision should not stand. On motion and “just terms,” the court may relieve a party from a final judgment, order, or proceeding for the reasons the rule lists,² which means undoing part of what the court decided. Rule 60(a) leaves the decision alone and repairs the paper that records it.³ That difference in function explains the difference in procedure. A correction takes nothing from the winner, because the winner never held a ruling that said what the slip said. Relief under Rule 60(b) strips a ruling from a party who won it after full adjudication, so the rule surrounds the remedy with listed grounds, a deadline, and a burden on the movant.

The rule lists six grounds. The first three are mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence that could not have been found in time to move for a new trial; and fraud or other misconduct by the adverse party.⁴ The rest are a void judgment; a judgment that has been satisfied, released, or discharged, that rests on an earlier judgment since reversed or vacated, or whose prospective application is no longer equitable; and “any other reason that justifies relief.”⁵ The grounds are mutually exclusive, so the residual clause cannot, without more, serve as an escape from the time limits that govern the earlier ones.⁶ The rule also preserves the court’s power to entertain an independent action to relieve a party from a judgment, order, or proceeding, which this chapter does not pursue.⁷

The timing rules make the contrast concrete. A Rule 60(b) motion must be made within a reasonable time, and for the first three grounds no more than a year after entry of the judgment or order.⁸ The other three grounds carry only the reasonable-time requirement. The motion does not affect the judgment’s finality or suspend its operation, so the judgment stays in force while the court decides whether to disturb it.⁹

Relief is also discretionary. The court asks whether the stated reason is a permissible ground, and it may also weigh the prejudice to a party who relied on the judgment, whether the movant acted with due diligence, and any other matter bearing on the fairness of reconsidering the judgment.¹⁰ Rule 60(a) asks none of this. The strictness reflects a tension the system must manage between ending litigation and doing justice in the individual case, and American courts have typically given finality the greater weight.¹¹

Notice marks a last procedural difference. A court that is truly correcting a clerical mistake may act at any time without notice or hearing, and the failure to hear the parties violates no due process right, provided the court’s action involves only correction of a clerical mistake.¹² The protection ends where the correction ends. Relief from a judgment under Rule 60(b) comes only on motion and just terms.¹³

Because Rule 60(a) has no clock and demands no showing, a movant has every reason to call a request clerical. Three decisions show how courts sort the label from the substance.

Kemp v. United States fixes where a judge’s own legal error belongs. Kemp moved to reopen his §2255 proceedings under Rule 60(b)(6), but his motion sought reopening for a “mistake” that Rule 60(b)(1) covers: he argued that the one-year limitations period on his §2255 motion did not begin to run until his codefendants’ rehearing petitions were denied in May 2014.¹⁴ The Supreme Court held that “mistake” in Rule 60(b)(1) includes a judge’s errors of law, so Kemp’s motion was cognizable under clause (1) and untimely under Rule 60(c)’s one-year limit.¹⁵ Relief under clause (6) is available only when clauses (1) through (5) do not apply, so invoking the catch-all did not rescue the motion.¹⁶ The rule’s history supports that reading. When adopted in 1938, Rule 60(b) referred to “his”—a party’s—“mistake,” which left judicial errors out, and the 1946 revision deleted “his,” removing any limit on whose mistakes qualify.¹⁷

Kemp therefore marks the Rule 60(b) side of the line. A judge’s legal error is a flaw in making the decision, not in recording it. As the earlier discussion of clerical versus judicial error explains, it falls outside Rule 60(a) and inside Rule 60(b)(1), with its one-year cap, and the catch-all clause gives no way around that cap.

A Massachusetts case applies the same sorting to an omitted settlement credit. The Superior Court entered judgment on a $14,250,000 verdict on February 5, 2001, and nearly a year later, on January 25, 2002, the defendant, M/A-COM, moved under rule 60 to reduce the judgment by $500,000, a setoff representing a pretrial settlement.¹⁸ M/A-COM called the reduction a “purely ministerial act” correctable under rule 60 (a) and argued in the alternative for relief under rule 60 (b) for “mistake, inadvertence . . . or excusable neglect.” The court rejected the clerical label and treated the motion as a request for a substantive change under rule 60 (b).¹⁹

The classification decided what M/A-COM had to prove. Had the court accepted the clerical label, the motion would have needed no excuse. Because the request was substantive, M/A-COM needed one, and it offered none: it gave no reason for the delay beyond stating conclusively that the delay was the result of “mistake, inadvertence . . . or excusable neglect,” and it cited no facts in support. It therefore failed to meet its burden of justifying why relief should be granted.²⁰

A party with a doubtful clerical theory should also keep Rule 60(b) in play. M/A-COM argued it in the alternative, which let the court decide the motion under that rule. A Colorado mother who stated that she did not intend to seek relief under C.R.C.P. 60(b) abandoned that claim, and the reviewing court treated it as abandoned.²¹ A movant whose clerical theory fails thus needs the alternative ground preserved, and must be ready to meet its time limit and its burden.

Rule 60(a) Versus Rule 59(e)

Rule 59(e) sits on the other side of the line from Rule 60(a). A judgment may be altered or amended on a motion made and filed within 28 days after its entry,²³ and the motion is directed at substantive error, such as a manifest error of law or fact, not at slips in the paper that records the ruling.²⁴ One court put the division this way in a footnote: Rule 59 authorizes amending a judgment in the context of a motion for new trial, while Rule 60 governs amendments that arise from clerical mistakes or from relief on the specified grounds.²⁵ A correction under Rule 60(a), by contrast, may be made “whenever one is found,” on motion or on the court’s own initiative.²⁶

The two rules differ in timing because they differ in how much of the court’s decision they put at risk. A Rule 59(e) motion asks the court to take a second look at the merits, so the winner needs a date after which the judgment can be relied on, and 28 days marks that date. Once it passes, the judgment may be attacked, other than by appeal, only as Rule 60 provides, and Rule 60 sorts its grounds by how much each would disturb. Clerical mistakes may be corrected at any time, on motion or on the court’s initiative, while mistake, newly discovered evidence, and fraud face a reasonable-time limit capped at one year.²⁷ The field is divided by what is being changed, with a short window for errors of substance and none for errors of transcription.

That division holds only if courts decide for themselves what is being changed. A movant who has let 28 days pass has every reason to describe a request to revisit the result as a typographical fix, since the clerical label is the one that escapes the clock. Courts therefore apply the test developed earlier in this chapter, which asks whether the change conforms the paper to what the court decided or alters that decision. A request of the second kind is a Rule 59(e) request whatever it is called, and it is untimely once the window has closed.

The label’s effect shows up when two state courts faced the same kind of omission, a settlement credit left out of a judgment. In Quicken Loans, Inc. v. Brown, the West Virginia court relied on its earlier decision in Savage, which held “as a matter of law that upon the defendant’s motion the trial court was required to deduct the settlement amount from the jury verdict prior to entering the final judgment.” The failure to give that credit, the court said, was “a mere oversight” that “does not arise to the level of more substantial errors which must be considered pursuant to Rule 59(e) or Rule 60(b).”²⁸ The Massachusetts court in the M/A-COM case treated a similar omission as a substantive change under its Rule 60(b), where the movant had to justify its delay.²⁹ One kind of omission thus drew one classification in West Virginia and the opposite one in Massachusetts. Both courts applied state counterparts, so neither decision states the federal answer, and a problem on this point should argue both characterizations unless the controlling jurisdiction’s cases settle it.

The two rules also differ in who may set them in motion. Rule 59(e) operates on a party’s motion. In a Maine decision, the rule on amending findings of fact provided for amendment “upon motion of a party” and did not mention the court’s own initiative, yet the trial justice had amended his findings when no party had moved. A justice who makes “a slip of the tongue” and uses the name of one party where he meant another’s may correct his own mistake on his own initiative under Rule 60(a).³⁰ The correction power therefore does not depend on a party’s invoking a motion rule. That freedom also marks its limit. A court cannot use the clerical label to make a substantive change that the timing rules would otherwise restrain, and a party cannot use it to escape a tardy Rule 59(e) objection.

The characterization fight matters only after the window closes. Inside 28 days a party can invoke Rule 59(e) for a substantive change, so the choice of rule changes little, and after day 28 only Rule 60 remains.