Amicus Curiae Brief — Dexter Earl Kemp, Petitioner v. United States

No. 21-5726

In the

Supreme Court of the United States

DEXTER EARL KEMP,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE

NEW CIVIL LIBERTIES ALLIANCE

IN SUPPORT OF THE PETITIONER

MARGARET A. LITTLE

Counsel of Record

KARA M. ROLLINS

MARK S. CHENOWETH

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Peggy.Little@NCLA.legal

Counsel for Amicus Curiae

March 1, 2022

i

QUESTION PRESENTED

Whether Federal Rule of Civil Procedure

60(b)(1), which authorizes relief from final judgment

based on “mistake,” as well as inadvertence, surprise,

or excusable neglect, also authorizes relief based on

the district court’s error of law.

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................... iii

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF THE ARGUMENT ........................ 3

ARGUMENT ............................................................... 6

I. A Short History of Post-Judgment Relief ...... 6

A.

The Common Law Regime....................6

B.

The Origin of Rule 60(b) .......................9

C.

The 1946 Amendment ........................ 11

D. The Structure of the Rule ................... 13

II. Post-Adoption Interpretation ..................... 15

CONCLUSION ......................................................... 22

iii

TABLE OF AUTHORITIES

Cases

Boyd v. United States, 116 U.S. 616 (1886) ............ 15

Buck v. Davis, 137 S. Ct. 759 (2017) ......................... 3

Carter v. Fenner, 136 F. 3d 1000 (5th Cir. 1998) .... 14

Cf. Banister v. Davis, 140 S. Ct. 1698 (2020) ............ 4

Ex Parte Lange, 85 U.S. 163 (1873) ........................... 7

Fleming v. Miller,

47 F. Supp 1004 (D. Minn. 1942) ......................... 11

Gonzales v. Crosby, 545 U.S. 524, (2005) ............... 17

Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

322 U.S. 238 (1944) ................................................ 6

In re Barnett, 124 F.2d 1005 (2d Cir. 1942) ............ 11

Jusino v. Morales & Tio,

139 F.2d 946 (1st Cir. 1944) ................................. 11

Klapprott v. United States,

335 U.S. 601 (1949) ....................................... passim

Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847 (1988) .......................................... 3, 18

New York Life Ins. Co. v. Brown,

84 F.3d 137 (5th Cir. 1996) .................................. 12

Pennoyer v. Neff, 95 U.S. 714 (1877) ......................... 6

iv

Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship,

507 U.S. 380 (1993) .............................................. 17

Schram v. O’Connor,

2 F.R.D. 192 (E.D. Mich. 1941) ............................ 10

Scotten v. Littlefield, 235 U.S. 407 (1914) ............... 14

SEC v. Bolla, 550 F. Supp. 2d 54 (D.D.C. 1983) ..... 14

U.S. v. Mayer, 235 U.S. 55 (1914).......................... 4, 6

United States use of Wilson v. Walker,

109 U.S. 258 (1883) .......................................... 7, 18

United States v. Certain Lands in the Town of

Highlands,

82 F. Supp 432 (S.D.N.Y. 1946) ........................... 10

United States v. Dickson, 40 U.S. 141 (1841) ............ 3

United States v. Turkette, 452 U.S. 576 (1981) ....... 18

United Student Aid Funds, Inc. v. Espinosa,

559 U.S. 260 (2010) .......................................... 7, 14

Wallace v. U.S., 142 F.2d 240 (2d Cir. 1944) .......... 10

Wis. Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) ............................................ 5

Statutes

28 U.S.C. § 118 ........................................................... 9

8 U.S.C. § 738 ........................................................... 17

v

Rules

Fed. R. Civ. P. 6(b) (1938) ........................................ 10

Fed. R. Civ. P. 60(b) (1938) ............................... passim

Other Authorities

47 Am. Jur. 2d Judgments § 653 ............................. 13

Antonin Scalia & Brian Garner: Reading Law: The

Interpretation of Legal Texts, 180–82 (2012) .. 5, 15

Charles A. Wright, Arthur R. Miller, & Mary Kay

Kane, Federal Practice & Procedure § 2862 (2d

ed.1995 and Supp. 2009) ...................................... 21

James Wm. Moore & Elizabeth B.A. Rodgers,

Federal Relief From Civil Judgments, 55 Yale L.J.

623 (1946)................................................................ 4

Note, Federal Rule 60(b): Relief From Civil

Judgments, 61 Yale L.J. 76 (1952)......................... 8

The Temporal Aspects of the Finality of Judgments:

The Significance of Federal Rule 60(b), 17 U. Chi.

L. Rev. 664 (1950) ................................................... 4

1

INTEREST OF AMICUS CURIAE1

The New Civil Liberties Alliance (NCLA) is a

nonpartisan, nonprofit civil-rights organization

devoted to defending constitutional freedoms from

violations by the administrative state. The “civil

liberties” of the organization’s name include rights at

least as old as the U.S. Constitution itself, such as

jury trial, due process of law, the right to be tried in

front of an impartial and independent judge, and the

right to live under laws made by the nation’s elected

lawmakers through constitutionally prescribed

channels. Yet these self-same rights are also very

contemporary—and in dire need of renewed

vindication—precisely

because

Congress,

administrative agencies, and courts have neglected

them for so long.

NCLA aims to defend civil liberties—primarily

by asserting constitutional constraints on the

administrative

state

and

defending

those

constitutional principles in the courts. Although

Americans still enjoy the shell of their Republic, there

has developed within it a very different sort of

government—a type, in fact, that the Constitution

was designed to prevent. This unconstitutional

1 Pursuant to Supreme Court Rule 37.6, NCLA states that

no counsel for a party authored this brief in whole or in part; and

that no person or entity, other than NCLA and its counsel, made

a monetary contribution intended to fund the preparation and

submission of this brief. All parties consented to the filing of this

brief after receiving timely notice.

2

administrative state within the Constitution’s United

States is the focus of NCLA’s concern.

NCLA is particularly interested in preserving

judicial remedies for relief from judicial error,

prosecutorial

or

executive

overreach,

or

unconstitutional judgments that abridge Americans’

civil liberties. Because courts, like any other human

institution, are fallible, error in such judgments may

be discovered years after entry.

Furthermore,

unconstitutional practices by the government or

administrative agencies can and unfortunately do go

unquestioned for years and may require subsequent

correction under the rules that govern court

proceedings.

When, as here, error is admitted by all parties,

the Supreme Court in adopting the Federal Rules of

Civil Procedure determined that Rule 60 should be

available to correct judicial errors of law, by courts

exercising independent judgment and without bias.

The Executive typically plays an outsized role in

setting forth the terms upon which judgments are

entered in governmental cases.

The construction given to the laws, by

any department of the executive

government, is necessarily ex parte,

without the benefit of an opposing

argument …; and … the judicial

department has … the solemn duty to

interpret the laws, in the last resort; and

… in cases where its own judgment shall

3

differ from that of other high

functionaries, it is not at liberty to

surrender, or to waive it.

United States v. Dickson, 40 U.S. 141, 161–62 (1841)

(per Story, J.). Here, where this Court expressly

designed the federal rules to permit correction of

judicial errors of law, the judiciary must step in to

protect the judicial decision from annulment.

SUMMARY OF THE ARGUMENT

The Supreme Court adopted Rule 60(b) to

“accomplish justice” and to avoid “undermining the

public’s confidence in the judicial process.” Klapprott

v. United States, 335 U.S. 601, 614–15 (1949);

Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847, 864 (1988). Allowing incorrect—or even

worse, unconstitutional—judgments to stand “injures

not just the defendant, but the law as an institution,

… the community at large, and … the democratic

ideal reflected in the processes of our courts.” Buck v.

Davis, 137 S. Ct. 759, 778 (2017) (cleaned up) (finding

Rule 60(b) relief appropriate where race was a factor

in the original judgment and state’s interest in

finality deserves little weight when proceedings

violate the Constitution).

Before the Supreme Court decided to adopt the

Federal Rules of Civil Procedure, federal courts had

two ways of altering erroneous judgments. First, if the

term in which the district court entered the erroneous

judgment was not yet over, parties could petition

4

district courts to use their inherent power to modify

judgments. See U.S. v. Mayer, 235 U.S. 55, 67 (1914).

This centuries old power became known as the “term

rule.” Cf. Banister v. Davis, 140 S. Ct. 1698, 1709

(2020) (using the phrase “term rule”). Second, if the

term had expired, a latinate potpourri of remedial

devices was developed to permit correction of

judgments as needed to effectuate justice. See James

Wm. Moore & Elizabeth B.A. Rodgers, Federal Relief

From Civil Judgments, 55 Yale L.J. 623, 626 (1946).

While these remedial devices served the noble cause

of correcting judgments, courts applied them

inconsistently, sometimes turning justice into a

matter of luck. See Klapprott, 335 U.S. at 614 (“few

courts ever have agreed as to what circumstances

would justify relief under these old remedies.”).

To establish more uniform justice, this Court

adopted the first iteration of Rule 60(b) in 1937. This

new rule did away with the “term rule” and let

litigants move to reopen their cases if they brought

their motion “within a reasonable time” not

“exceeding six months.” Fed. R. Civ. P. 60(b) (1938).

While this change was certainly an improvement

from the prior ad hoc and happenstance practice, the

new Rule 60(b) did not go far enough. Therefore, in

1946, the drafters rewrote Rule 60(b), codifying the

common law practices and “dramatic[ally]” expanding

the ability of courts to remedy prior incorrect

judgments. See Comment, The Temporal Aspects of

the Finality of Judgments: The Significance of Federal

Rule 60(b), 17 U. Chi. L. Rev. 664, 668 (1950). The

amended Rule 60(b) still stands today, and courts

5

should interpret it consistent with its original public

meaning and purpose. See Wis. Cent. Ltd. v. United

States, 138 S. Ct. 2067, 2074–75 (2018).

The Rule and each of its subsections addressed

a particular infirmity and provided a remedy therefor.

Reading the Rule to provide for overlapping or

alternate remedies as proposed by the Government

here defeats the design of the Rule, contradicts the

harmonious reading canon of interpretation, see

Antonin Scalia & Brian Garner, Reading Law: The

Interpretation of Legal Texts, 180–82 (2012) (“there

can be no justification for needlessly rendering

provisions in conflict if they can be interpreted

harmoniously”), and fails to serve the Rule’s purpose

of doing substantial justice.

This amicus brief first examines the history of

federal district courts’ power to revise flawed

judgments, including common law doctrines and

equitable practices before the adoption of the Federal

Rules of Civil Procedure, the original Rule 60(b), and

the amended Rule 60(b). Next, this brief examines

contemporaneous interpretation of the most recent

amendment to Rule 60(b) by this Court. This

statutory history and judicial interpretation elucidate

the drafters’ goals of crafting an internally coherent

rule that expands the situations in which a litigant

can petition a court to reopen an erroneous judgment.

6

ARGUMENT

I.

A SHORT HISTORY OF POST-JUDGMENT RELIEF

A. The Common Law Regime

Prior to 1938, district courts had plenary

authority to alter their judgments before the “term” of

the court ended. Mayer, 235 U.S. at 67. However, if

the term ended and the flawed judgment was still in

effect, parties could take remedial action through one

of four ill-defined and overlapping categories. First,

parties could reopen the judgment through writs of

audita querela, coram nobis, coram vobis and bills of

review or in the nature of bill of review. See Moore &

Rodgers, supra, at 626–27, 659–670 (discussing how

these “ancillary remedies” were primarily used for

legal errors on the face of the record and newly

discovered facts). Second, if there was extrinsic fraud,

mistake, or accident on behalf of the moving party,

that party could assert a direct action in equity to

reopen the case. Id. at 653. These direct actions often

overlapped with the “ancient writs.” See Klapprott,

335 U.S. at 614. Third, if the problem was the scope

of an injunction, district courts found they had

inherent power to modify such injunctions. See, e.g.,

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322

U.S. 238 (1944). Finally, courts retained the power to

disregard or vacate void judgments, as they never had

the power to enter them in the first place. See

Pennoyer v. Neff, 95 U.S. 714 (1877).

7

Indeed, the common law provided a remedy

where courts that otherwise have personal and

subject-matter jurisdiction, may have their

judgments voided for lack of power to issue them at

all. See United States use of Wilson v. Walker, 109

U.S. 258, 266 (1883) (superseded by Rule as stated in

United Student Aid Funds, Inc. v. Espinosa, 559 U.S.

260, 271 (2010) (“Although a court may have

jurisdiction over the parties and the subject-matter,

yet if it makes a decree which is not within the powers

granted to it by the law of its organization its decree

is void.”). As the Supreme Court observed in Ex Parte

Lange, 85 U.S. 163, 176–77 (1873):

It is no answer to this to say that the

court had jurisdiction of the person of

the prisoner, and of the offence under

the statute. It by no means follows that

these two facts make valid, however

erroneous it may be, any judgment the

court may render in such case. If a

justice of the peace, having jurisdiction

to fine for a misdemeanor, and with the

party charged properly before him,

should render a judgment that he be

hung, it would simply be void. Why void?

Because he had no power to render such

a judgment. So, if a court of general

jurisdiction should, on an indictment for

libel, render a judgment of death, or

confiscation of property, it would, for the

same reason, be void. Or if on an

indictment for treason the court should

8

render a judgment of attaint, whereby

the heirs of the criminal could not

inherit his property, which should by the

judgment of the court be confiscated to

the State, it would be void as to the

attainder, because in excess of the

authority of the court, and forbidden by

the Constitution.

This system of correcting erroneous judgments

contained serious flaws, principally the arbitrary

timing and confusion over the availability and

meaning of the writs and bills. It was inequitable to

parties whose cases were heard toward the end of the

term. See Comment, supra, at 666. Parties who lost

their cases early in the term had much more time to

convince the district court to alter the judgment than

parties who lost later in the term. In fact, a litigant

who lost on the last day of the term would have no

recourse at all under the “term rule” and would have

to resort to the various ad hoc remedial devices

described above. Id. at 665–68. The process thus fell

short of doing substantial justice.

The inequity of the “term rule” resulted in

courts creating remedial devices over hundreds of

years. See Note, Federal Rule 60(b): Relief From Civil

Judgments, 61 Yale L.J. 76, 76–77 (1952). While these

devices blunted the impact of the “term rule,” they

had their own infirmities, primarily inconsistency

and confusion. By the mid-20th century, neither courts

nor litigants could be sure which writs applied under

which circumstances. See Klapprott, 335 U.S. at 614.

9

As the Advisory Committee on Rules for Civil

Procedure wryly noted, the remedial devices were

“shrouded in ancient lore and mystery.” Fed. R. Civ.

P. 60(b) advisory committee’s note to 1946

amendment. Contemporary academics were just as

flummoxed, with famed civil procedure scholar James

Moore stating, “no one could say with certainty … just

what matters could be reached or raised by a bill of

review, writ of error coram nobis, or the like.” Moore

& Rodgers, supra, at 638. In short, these remedial

devices offered potential relief, but still often made

obtaining substantial justice uncertain.

B. The Origin of Rule 60(b)

It was clear by 1937 that the traditional

methods of reopening judgments were not working.

To remedy the problem, the Supreme Court included

Rule 60(b)2 in the first Rules of Civil Procedure. See

In full, this incarnation of Rule 60(b) read: “MISTAKE;

INADVERTENCE; SURPRISE; OR EXCUSABLE NEGLECT. On motion

the court upon such terms as are just, may relieve a party or his

legal representative from a judgment, order, or proceeding taken

against him through his mistake, inadvertence, surprise, or

excusable neglect. The motion shall be made within a reasonable

time, but in no case exceeding six months after a judgment,

order, or proceeding was taken. A motion under this subdivision

does not affect the finality or suspend its operation. This rule

does not limit the power of a court (1) to entertain an action to

relieve a party from a judgment, order, or proceeding, or (2) to

set aside within one year, as provided in Section 57 of the

Judicial Code U.S.C. Title 28, § 118, a judgment obtained against

a defendant not actually personally notified.”

2

10

10a (Rule 60 (1938)). Under this new rule, its drafters

did away with the previous “term rule” used in the

federal district courts. Instead, parties could move to

reopen a judgment “within a reasonable time” not to

exceed “six months” from the date of the judgment.

Fed. R. Civ. P. 60(b) (1938). Nonetheless, some

district courts found it within their power under Rule

6(b) to waive this six-month limit and allow for

motions to reopen cases for an undefined period. See

Schram v. O’Connor, 2 F.R.D. 192 (E.D. Mich. 1941)

(noting that Fed. R. Civ. P. 6(b) (1938) allowed courts

to extend deadlines, including deadlines under Rule

60(b)).

While the original Rule 60(b) did away with the

“term rule,” most courts held it did not abolish the

common law writs of audita querela, coram nobis,

coram vobis, bill of review, and bill in the nature of

bill of review. See Wallace v. U.S., 142 F.2d 240, 244

(2d Cir. 1944) (holding that the “savings clause” in

Rule 60(b) preserved the common law writs); see also

United States v. Certain Lands in the Town of

Highlands, 82 F. Supp. 432, 434 (S.D.N.Y. 1946)

(holding that Rule 60(b) did not eliminate bills of

review). While the original Rule 60(b) was intended to

simplify, expand, and standardize post-judgment

review, yet, with the traditional writs still in effect,

and courts exercising power under Rule 6(b) to extend

timelines, litigants were still not guaranteed any

measure of certitude or consistency.

The enduring availability of the traditional

writs was important because courts uniformly held

11

that mere errors of law by courts were not within the

ambit of “[the party’s] mistake, inadvertence,

surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)

(1938); Jusino v. Morales & Tio, 139 F.2d 946, 947 (1st

Cir. 1944) (stating that the original Rule 60(b) had “no

bearing” on a claim for a mistake of law); In re

Barnett, 124 F.2d 1005, 1012 (2d Cir. 1942) (not

applying Rule 60(b) to a claim of legal error); Fleming

v. Miller, 47 F. Supp. 1004, 1010 (D. Minn. 1942)

(same). This meant that without the savings clause at

the end of Rule 60(b), district courts would have been

unable to fix legally erroneous judgments after six

months expired. The Government does not dispute

this, but instead argues that the Rule intended to give

district courts the ability to revisit legally erroneous

judgments under subsection (b)(1) of the amended

Rule 60(b) merely by taking the word “his” out of the

first sentence. Br. in Opp. at 14. As amicus shows

below, this interpretation creates structural

contradictions within the Rule and contravenes the

objectives of this Court in adopting the rule.

C. The 1946 Amendment

Given the flaws of the original Rule 60(b), the

federal rule drafters endeavored to update it in 1946.

The 1946 amendment to Rule 60(b)—which took effect

in 1948—made three significant changes. First, the

amendment extended the timeline for a district court

to adjust judgments because of “mistake,

inadvertence, surprise, or excusable neglect” from six

months to one year. Fed. R. Civ. P. 60(b)(1), (c)(1).

Second, the amendment codified, incorporated, and

12

expanded the disparate remedial measures that

district courts were using to reopen a judgment, Fed.

R. Civ. P. 60(b)(1)-(6), and abolished the old writs in

subsection (e). Third, the amendment added a

catchall provision which authorizes courts to reopen

judgments for “any other reason that justifies relief.”

Fed. R. Civ. P. 60(b)(6).

Notably, the drafters made these changes to

expand a litigant’s ability to obtain relief from

erroneous judgments. As a contemporary author

explained, the new Rule 60(b) was a “fundamental

change” from the previous regime. Comment, supra,

at 670. The change was most dramatic as it pertained

to the time limits to reopen a judgment. Subsection

(b)(1) doubled the amount of time that a party had to

reopen a case for “mistake, inadvertence, surprise, or

excusable neglect” and subsections (b)(4)-(6) contain

no explicit time limit other than they must be raised

in “a reasonable time.”3

Because Rules 60(b)(1)-(3) involve factintensive, non-legal errors like new evidence and

fraud that require prompt correction, some time limit

is appropriate. By contrast, Rules 60(b)(4)-(6) focus on

3 The “reasonable time” requirement was likely intended to be

different for the different subsections. For example, if a

judgment turned out to be void, there could be no time restriction

upon the motion, as the underlying judgment was a nullity to

begin with. See New York Life Ins. Co. v. Brown, 84 F.3d 137,

143–44 (5th Cir. 1996).

13

legal

errors,

unconstitutionality,

or

legal

developments that would render the judgment void.

Those errors do not involve litigation conduct or trial

evidence and thus warrant a lengthier, more flexible

timeline for correction—or no time limit at all in the

case of an unconstitutional or otherwise void

judgment. “Although Rule 60(c)(1) purports to require

all motions under Rule 60(b) to be made ‘within a

reasonable time,’ this limitation does not apply to a

motion under clause (4) attacking a judgment as void.

There is no time limit on a motion of that kind.” 11

Charles Alan Wright & Arthur R. Miller, Federal

Practice & Procedure § 2866 (3d ed. 2002 & Supp.

2019); “[A] judgment allegedly void on constitutional

grounds is subject to attack at any time.” 47 Am. Jur.

2d Judgments § 653.

D. The Structure of the Rule

The structure of the amended Rule 60(b) is

crucial to this case. Subsections (b)(1)-(6) of the new

rule codified and expanded existing common law

remedies. See Fed. R. Civ. P. 60(b) advisory

committee’s note to 1946 amendment (noting that

Rule 60(b) maintains the forms of “relief from

judgments which were permitted in the federal courts

prior to the adoption of these rules …”). There is

nothing in the rule or the comments thereto that even

suggests that the amendments were intended to cut

back on any of those remedies. Yet, under the

Government’s interpretation of subsection (b)(1),

parties would only have one year to claim the district

court made a legal error. Br. in Opp. at 24. This is

14

contrary to the committee’s note discussing that

before the amendment, parties could reopen a

judgment for a legal error with a “bill of review”

longer than one year after the judgment was entered.

See Scotten v. Littlefield, 235 U.S. 407, 411 (1914)

(denying the bill of review on other grounds). This

contradiction casts doubt on the Government’s claim.

The difference in the time to raise claims under

subsections (b)(1)-(3) and (b)(4)-(6) also hurts the

Government’s argument that subsection (b)(1) was

intended to cover legal errors. If legal errors were to

fall under section (b)(1), the error could be subject to

two different time requirements—a result the

drafters surely could not have intended. For example,

no one disputes that entering a judgment without

subject-matter jurisdiction would be a legal error.

Therefore, under the Government’s interpretation of

subsection (b)(1), a litigant can only raise this claim

within a year. However, if a judgment is “void” under

subsection (b)(4) because there was, for example, “a

clear usurpation of power,” see United Student Aid

Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010)

(declining to “define the precise circumstances in

which a jurisdictional error will render a judgment

void” under Rule 60(b)(4)), or because the court lacked

power to issue a particular remedy, SEC v. Bolla, 550

F. Supp. 2d 54 (D.D.C. 1983), or where, as in

Klapprott, statutory grounds other than jurisdiction

or due process void a judgment, e.g., Carter v. Fenner,

136 F. 3d 1000 (5th Cir. 1998) (voiding under 60(b)(4)

a minor’s settlement judgment where the necessary

probate court approval had not been secured), parties

15

may bring the motion “within a reasonable time” Fed.

R. Civ. P. 60(c)(1), or at any time if the court lacked

power to enter all or part of an order. Therefore, the

Government’s interpretation of subsection (b)(1)

creates a paradox. If an erroneous legal judgment

falls under subsection (b)(1), then it would be both

challengeable and not challengeable at the same time.

See Scalia & Garner, supra, at 180 (“The imperative

of harmony among provisions is more categorical than

most other canons of construction because it is

invariably true that intelligent drafters do not

contradict themselves (in the absence of duress).”).

II.

POST-ADOPTION INTERPRETATION

Immediate interpretation of a statute has long

been strong evidence of its original public meaning.

See, e.g., Boyd v. United States, 116 U.S. 616, 622

(1886). We rely upon this principle of contemporanea

expositio because we assume that interpreters closer

to the time of enactment had a better grasp on the

language than we do many decades later. Id. This

principle should be especially strong when it is a

neutral court discerning the contemporaneous

meaning of a statute or rule and not a self-interested

administrative agency or other interested party.

Only one year after the amendment to Rule 60

became effective, this Court interpreted its meaning

in Klapprott, 335 U.S. 601. In Klapprott, a German

immigrant sought to reopen a judgment stripping him

of his American citizenship. The Government alleged

that Mr. Klapprott had lied on his naturalization form

16

and was still loyal to Adolf Hitler. Id. at 603. During

the “denaturalization” proceeding, Mr. Klapprott

“was absent [from the courtroom], no counsel or other

representative of his was present, no evidence was

offered, and the only basis for action was a complaint

containing allegations, questionable from a

procedural and substantive standpoint . . . .” Id. at

610. Mr. Klapprott did receive notice of the

proceeding. Id. at 604. However, at the time he was

seriously ill, broke, and was arrested a few days later

for allegedly violating the Selective Service Act, which

denied him the chance to contest the accusation that

he had lied on his naturalization form. Id. at 604–607.

Four years after he was denaturalized, Mr.

Klapprott filed a motion under Rule 60(b) to reopen

the judgment against him and halt his impending

deportation. Id. at 607. Notably, this was well past

the one-year deadline to raise a claim for “mistake,

inadvertence, surprise, or excusable neglect[.]” Fed.

R. Civ. P. 60(b)(1). Instead, he moved to reopen the

judgment under Rule 60(b)(4) for voidness and under

the 60(b)(6) catchall provision. The Court ruled in the

alternative for Mr. Klapprott on both issues.4

4 To clarify the “lineup” of justices in Klapprott, Justice Black

announced the “judgment of the court,” joined by Justice

Douglas. Justices Rutledge and Murphy “concurre[d] in the

result;” their concurrence stated, “upon the assumption that

rules of civil procedure may apply in denaturalization

proceedings” they were “substantially in accord with the views

expressed by MR. JUSTICE BLACK.” Justice Burton concurred

17

The lead opinion from Justice Black contained

two holdings. First, and most important to the case at

hand, the judgment “denaturalizing” Mr. Klapprott

was void under Rule 60(b)(4). The Court held that the

district court did not follow the proper statutory

procedure to enter a denaturalization order.

Klapprott, 335 U.S. at 609–610. Specifically, the

Court held that 8 U.S.C. § 738 required district courts

to conduct a “hearing [and hear] evidence” before

entering a default judgment “denaturalizing” a

citizen. Id. Because the district court did not follow

the correct statutory procedure, its judgment

“denaturalizing” Mr. Klapprott was void because

without satisfying the proper procedures the court

lacked the power to enter the default judgment. Id.

Holding that a legal error, such as a failure to

follow statutory procedures, can render a judgment

void under subsection (b)(4) eviscerates the

Government’s argument in this case. Under its

reading of subsection (b)(1), this type of legal error

would be covered by both (b)(4) and (b)(1). However,

entirely with the majority opinion but did “not express an

opinion on any matters not before this Court.” While five justices

did not formally join Justice Black’s opinion, the Supreme Court

has consistently cited Justice Black’s opinion as a majority

opinion entitled to precedential value. See, e.g., Gonzales v.

Crosby, 545 U.S. 524, 534, 542 (2005); see also Pioneer Inv. Servs.

v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394 (1993). Not

only has the Supreme Court treated Klapprott as binding

precedent, but so has the Government in this case. See Br. in

Opp. at 17–18.

18

that reading would violate the Supreme Court’s

longstanding interpretive principle that statutes

should be read harmoniously and to avoid “internal

inconsistencies.” See United States v. Turkette, 452

U.S. 576, 580 (1981). Furthermore, this Court has

consistently read the provisions of Rule 60(b) in

harmony. See Liljeberg v. Health Servs. Acquisition

Corp., 486 U.S. 847, 863 (1988); see also Klapprott,

335 U.S. at 613. Not only would reading “mistake” to

cover legal errors make subsection (b)(4) redundant,

but it would also create a paradox. A legal error

serious enough to result in a void judgment would fall

under the one-year time limit of subsection (b)(1), but

also under the more expansive “reasonable time” limit

of subsection (b)(4). Given that the 1946 amendment

to Rule 60(b) was designed to simplify the law

surrounding the reopening of judgments, it seems odd

that this Court would have enacted a type of

“Schrodinger’s provision,” where a motion could be

timely and untimely at once.

The Government may counter with the

argument that legal errors which result in voidness

under subsection (b)(4) are somehow different in kind,

and subsection (b)(1) only covers other legal errors.

However, this reading does not hold up to scrutiny.

First, nothing in the text of the Rule gives guidance

for courts to determine which legal errors result in

voidness and which do not. And, while the historical

usage of term “void” gives some clue as to which

judgments would be void—rather than just

incorrect—this still does not provide an easily

applicable bright-line rule. See Walker, 109 U.S. at

19

266 (explaining the voidness as when a court “makes

a decree which is not within the powers granted to it

by the law of its organization its decree is void.”). This

would be far less consequential if district courts

evaluate legal errors under subsection (b)(6), since

neither subsection (b)(4) nor (b)(6) has a hard

deadline after which one cannot move for relief. See

Fed. R. Civ. P. 60(c)(1). In deciding between an

interpretation of Rule 60(b) that creates contradictory

deadlines and an interpretation that creates coherent

ones, this Court should conclude the rule drafters

meant the latter.

The Supreme Court’s alternative holding in

Klapprott does nothing to help the Government’s

untenable position. After determining that subsection

(b)(4) allowed the district court to reopen the

judgment, the Supreme Court went on to state that

the Government’s improper conduct throughout the

previous years would have authorized relief under

subsection (b)(6) as well. Klapprott, 335 U.S. at 614–

15. No one could deny that the facts surrounding Mr.

Klapprott’s failure to contest his denaturalization

were exceptional. When the U.S. Attorney filed suit

against him, Mr. Klapprott was gravely ill and unable

to work. Id. at 604. This illness not only sapped him

of his strength, but also his financial resources. Id.

Before he could muster an answer to the complaint

against him, Mr. Klapprott was arrested for allegedly

violating the Selective Service Act and was held in

prison pretrial with $25,000 bail which he could not

afford. Id. at 604–05. The Government held Mr.

20

Klapprott for six and a half years5—four and a half of

which the Supreme Court deemed “wrongful.” Id. at

607–08. Moreover, his attempts to contact the ACLU

for representation were thwarted when FBI agents

confiscated his letter asking for legal help. Id. at 604.

Due to the Government’s misconduct, Mr. Klapprott

was unable to fight the denaturalization proceeding

against him. In holding that these circumstances

justified relief under subsection (b)(6), the Court

stated that Mr. Klapprott’s plight involved more than

mere “excusable neglect,” and therefore, he was not

bound by the one-year time limit in subsection (b)(1).

Id. at 613.

The Government addresses Klapprott in its

brief, but its analysis only proves why it is wrong

about Rule 60(b). See Br. in Opp. at 17–18. In arguing

that the Supreme Court has never authoritatively

interpreted Rule 60(b)(1), the Government contends

that “[i]n … Klapprott v. United States, … the only

ground for relief under Rule 60(b)(1) at issue was the

‘excusable neglect’ criterion” and not the “mistake”

criterion. Ibid. We agree! The Court never mentioned

the “mistake” portion of subsection (b)(1) because

legal errors are not within its purview. Mistakes of

law—like the district court’s failure to apply the

correct statutory procedures—fall under subsection

(b)(4) if they are serious enough to void the judgment,

5 At the time Mr. Klapprott filed his Rule 60(b) motion, he had

been in jail for approximately four years.

21

such as to be unconstitutional, see, e.g., 11 Charles A.

Wright, Arthur R. Miller, & Mary Kay Kane, Federal

Practice & Procedure § 2862, p. 331 (2d ed.1995 and

Supp. 2009), or subsection (b)(6) if they are not. If the

Court—expounding the meaning of the law only a

year after it took effect—thought that the district

court’s misapplying statutory requirements was a

“mistake” within subsection (b)(1), it surely would

have at least mentioned that Mr. Klapprott could

have brought his claim under subsection (b)(1). So,

Klapprott itself proves the Government’s position is

mistaken.

To summarize, directly after this Court

adopted amended Rule 60(b), the Supreme Court

interpreted it in a way that disproves the

Government’s argument. A legal error made by the

district court rendered it powerless to enter the

judgment against Mr. Klapprott. Yet, instead of

stating that Mr. Klapprott filed his motion under the

wrong subsection of Rule 60(b), the Supreme Court

held that such a legal error was ground for vacating

the judgment under Rule 60(b)(4). 335 U.S. at 610.

The

history

and

contemporaneous

interpretation of Rule 60(b) show two primary goals

of the Rule. First, this Court wanted to simplify the

post-judgment relief process. The “ancient” writs and

remedies had mystified courts for decades. This Court

adopted a more coherent rule which was intended to

fit together smoothly and allow consistency across

jurisdictions. Fed. R. Civ. P. 60(b) advisory

committee’s note to 1946 amendment. Second, this

22

Court wished to “grant[] courts a broader power to set

aside [flawed] judgments”—hence the reason it

enacted subsection (b)(6), which serves as a catchall

provision. Klapprott, 335 U.S. at 609.

The Government’s interpretation of the word

“mistake” in subsection (b)(1) cuts against both goals.

First, it would create a structural anomaly within the

Rule, subjecting some legal errors to two different

time limitations and giving courts no way to decide

between them. Second, it would cut back on the

traditional remedy of a “bill of review,” which the

committee notes explicitly preserve. Fed. R. Civ. P.

60(b) advisory committee’s note to 1946 amendment

(“The Committee has … endeavored then to amend

the rules to permit, either by motion or by

independent action, the granting of various kinds of

relief from judgments which were permitted in the

federal courts prior to the adoption of these rules …”).

This Court should not allow the Executive Branch to

rewrite the rules of civil procedure to better fit its

goals.

CONCLUSION

Courts, like any other human institution, are

fallible. To their great credit, they have always known

that. Over centuries, the common law developed

specific writs and bills to allow for correction of

judgments. When the drafters first codified these in

1937, the courts still drew on their fund of remedial

writs and bills to correct judgments—showing both

wisdom and humility about their own errors—

23

because the first Rule was inadequate to the

task. Judges knew the hard-won common law

remedies crafted by generations of judges were

necessary to accomplish the difficult task of

dispensing justice and should be preserved in an

expanded rule, not disposed of in the interest of

finality. It was only after these remedial bills and

writs had been securely and expansively preserved in

the new Rule 60(b) subsections, along with a new

savings provision to allow room for all contingencies

necessary to the fair administration of justice, that

the old remedies were abolished. The Government’s

reading of the Rule contradicts the history, structure

and purpose of Rule 60(b).

The Eleventh Circuit should be reversed.

Respectfully submitted,

MARGARET A. LITTLE

Counsel of Record

KARA M. ROLLINS

MARK S. CHENOWETH

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Peggy.Little@NCLA.legal

Counsel for Amicus Curiae

Dated: March 1, 2022