Kemp v. United States (21-5726)

argument 21-5726

Kemp v. United States

Supreme Court of the United States 43 min 5 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the central dispute over Rule 60B‑1 versus Rule 60B‑6 in Kemp v. United States?

Michael Adler 0:01

people hear argument next in Case 21-5726, Kemp v. United States. Mr. Adler. Mr. Chief Justice, and may it please the Court, Rule 60B-6 governs this case because Rule 60B-1 does not. That is so for two independent reasons. First, Rule 60B-1 does not cover legal errors. Second, it does not cover judicial errors. It does not cover legal errors because the word mistake means mistake of fact. B1 copied 17 state laws, and they overwhelmingly excluded legal errors. That makes perfect sense in this context. The three words accompanying mistake are all terms of art describing factual mishaps. 60A uses the word mistake to mean mistake of fact, and 60B1 through 3 have a one-year deadline precisely because they are factual defects.

Michael Adler 0:56

Meanwhile, B4 through 6 do not have such a deadline, and we already know that they cover legal errors. If B1 covered legal errors as well, that would contravene the structure of the rule. B1 does not cover judicial errors either. Those errors should be corrected under Rule 59E or on appeal, which have strict deadlines. Where a party fails to do so... They should, I'm sorry, where a party fails to do so, they should pay the price by having to show extraordinary circumstances under B-6. B-1, however, requires no heightened showing at all. So if B-1 covered judicial errors, people could use B-1 to get around the deadlines. And that regime is not sound at all. Neither is the government's definition of mistake.

Michael Adler 1:46

Originally, the government said that mistake meant any and all errors. Now they say that mistake means only unintentional and obvious errors. Slicing and dicing errors in that manner is unsupported and unworkable. No circuit has adopted that approach, and this Court should not impose an untested, subjective standard on lower courts and litigants. I welcome the Court's questions.

Clarence Thomas 2:12

Mr. Adler, are you conceding that the plain meaning of the word mistake doesn't work for you?

Michael Adler 2:20

Justice Thomas, it depends what you mean by the plain meaning of the word mistake. If you mean any— No,

Clarence Thomas 2:26

the judge made a mistake here.

Michael Adler 2:27

Sure, Your Honor, but it can't mean that in this context. And I'd like to give three reasons why, based on the text structure and precedent. Starting with precedent. This Court has about a handful of cases analyzing legal errors under B-6. If B-1 included all legal errors, that would conflict with the B-6 precedents because those two subdivisions are mutually exclusive. Relatedly, as to the structure, if B4 through 6 already cover legal errors, and so that would mean that any errors under those subdivisions would simultaneously be covered under B1, that would create substantial redundancy within the rule. And thirdly, it would create troubling implications for Rule 60A. If mistake meant any and all legal errors, then that would mean legal errors arising from oversight or omission would be covered by 60A, and that would eviscerate finality because 60A has no deadline at all.

Michael Adler 3:26

And judges could come in decades later and start correcting legal errors. They can do it sua sponte and without notice to the party. So it cannot mean any and all errors. That is why the government has expressly disavowed that position on page 15 of its brief in this case. The problem is the government's position is no better. They have some of the exact same problems here, but you've added on top of it major workability problems as well with this unintentional and obvious limitation. Those words are just entirely subjective. And how is a litigant supposed to know whether the judge's error was intentional or not? Is the government suggesting we put them on the stand? That would be a fraught enterprise.

Michael Adler 4:09

And as for a obvious, that also is inherently subjective. What's obvious to the litigant may not be obvious to the judge, and people need to know what subdivision applies on the front end because we have to know if there's a one-year deadline or if they have to make a heightened showing like extraordinary circumstances. And so our position is really the only viable position here. And our position reads the rules as a coherent whole.