Browder v. Director, Dept. of Corrections of Ill.

Mr. Justice Blackmun,

with whom Mr. Justice Rehnquist joins,

concurring.

I join the Court’s opinion but add the comment that, under slightly altered circumstances, respondent’s position might be sustained under Fed. Rule Civ. Proc. 60 (b)(1) or (6). This would be done by treating the District Court’s December 8, 1975, order as an order granting relief from judgment and the post-evidentiary-hearing order dated January 26, 1976, and entered January 28, as an order reinstating judgment. With a judgment thus newly entered, respondent’s notice of appeal would have been timely under Fed. Rule App. Proc. 4 (a) when it was filed on January 27. See Edwards v. Louisiana, 520 F. 2d 321 (CA5 1975), cert. denied, 423 U. S. 1089 (1976).

I would not decline to treat the matter under Rule 60 (b) merely because respondent did not label his initial motion for a new evidentiary hearing as a “Rule 60 (b) motion,” for that would exalt nomenclature over substance. 7 J. Moore, Federal Practice ¶ 60.42, p. 903 (1975) (“[Mjislabelled moving papers may be treated as a motion under 60 (b), in the absence of prejudice”). Certainly petitioner recognized in the District Court that Rule 60 (b) might provide a basis for the December 8 order; petitioner moved there unsuccessfully to vacate the order on the ground that respondent’s motion did not satisfy the “reasonable time” standard or meet the substantive categories of Rule 60 (b). Petitioner’s Memorandum of Law in Support of Motion to Vacate in No. 75 C 69 (ND Ill.), pp. 2-3; Brief for Petitioner in No. 76-1089 (CA7), p. 13.

The District Judge’s actions, in denominating his December 8 order as one granting respondent’s “motion for stay of execution of writ” and his January 28 order as one denying respondent’s “motion to reconsider,” are more of an obstacle. *273 The District Judge, though noting that respondent’s motion was “untimely” (App. 120), evidently intended to permit re-examination of the issue of probable cause in light of the evidence to be presented by the State at the hearing set for January 1976. An obvious way for the District Court to permit such further examination was, of course, to set aside the original October 21 judgment under Rule 60 (b). Though the District Court made no explicit finding that the standards of Rule 60 (b)(1) or (6) were satisfied, it did deny sub silentio petitioner’s motion disputing the applicability of those subsections. Arguably the District Judge might not have intended to set aside the October 21 judgment until and unless the January hearing turned up evidence mandating a change in the grant of habeas. But where, as here, the District Judge acted on respondent’s motion to conduct an evidentiary hearing within 48 days of the original judgment — when the possibility of granting a retroactive 30-day extension of time for taking an appeal was still open — a Court of Appeals would properly be reluctant to interpret the District Judge’s ambiguous succession of orders as intending to preclude full appellate review of his habeas corpus determination. Were I sitting in review on the Court of Appeals, I might well have chosen to treat the December 8 order as one granting relief from judgment.

The difficulty with effecting any such rescue of the Court of Appeals’ jurisdiction over the appeal from the January 28 order, is that respondent has strenuously resisted the aid. Respondent, evidently fearing that the January 28 order would be treated as an order declining to set aside judgment under Rule 60 (b) — rather than as an order re-entering judgment which already had been set aside on December 8 under Rule 60 (b) — and fearing that the scope of review thus would be limited to determining whether there was abuse of discretion, urged in his reply brief in the Court of Appeals, p. 3, that “[i]n point of fact respondent’s motion was not filed under Rule 60, but filed pursuant to . . . 28 U. S. C. [§] 2254 and *274 Townsend v. Sain, 372 U. S. 293 (1963), as is clear from the fac[e] of the motion.” And to deepen the difficulty, respondent added: “Indeed it is doubtful whether Rule 60 even applies in habeas cases.” Id., at 4 n. 1. Even in this Court, respondent has disavowed any reliance on Rule 60 (b), evidently preferring to bank on the possibility that the Federal Rules of Civil Procedure governing timeliness would be found not to apply in federal habeas proceedings. Brief in Opposition 7; Tr. of Oral Arg. 33-34. Under these circumstances, I see no obligation on this Court’s part to attempt to rescue respondent’s case on a Rule 60 (b) basis.