Supreme Court limits relief from final judgments after appellate deadlines pass
Maryland appellate practitioners have few options when clients need post-judgment relief but can no longer access an appellate court. But federal and state procedural rules still provide various, limited bases—and often more generous deadlines—for seeking relief from a court’s final judgment or order after the deadline for noticing an appeal has passed. Such rules are crucial—but different—in state and federal practice when, for whatever reasons, a litigant has not filed a timely notice of appeal. The Supreme Court recently addressed the issue in Kemp v. United States, construing Federal Rule of Civil Procedure 60(b). Kemp v. United States, No. 21-5726 (June 13, 2022).
Federal Rule 60(b) and the Kemp decision
Section (b) of Rule 60 covers every other reason for altering a final judgment or order, besides clerical mistakes, oversights, and omissions, which section (a) addresses. Rule 60(b)(1) allows a litigant to move to alter a final judgment “within a reasonable time”—but only within one year—after entry of judgment because of “mistake, inadvertence, surprise, or excusable neglect.” See Fed. R. Civ. P. 60(c)(1). Following five subsections that list various reasons for relief from a final judgment, Rule 60(b)(6) allows trial courts to re-open judgments for “any other reason that justifies relief” if the litigant moves “within a reasonable time.” Subsection (1), thus, gives litigants up to a full year, if reasonable, to seek amendment of a final judgment while subsection (6) allows such motions at any “reasonable time.” (Section (a) imposes no time limit.)
The controlling subsection of Rule 60(b) was crucial to the legal fate of Mr. Kemp, who was convicted of various federal crimes in 2011 and whose procedural odyssey captured the Supreme Court’s attention. He and seven codefendants appealed their convictions and sentences, but the Eleventh Circuit affirmed. Mr. Kemp did not appeal further, but two of his codefendants did, ultimately without success.
More than a year after his appeal ended—but within a year of the final judgment ending his codefendants’ appeal—Mr. Kemp moved the Florida federal trial court to vacate his sentence under Section 2255. The trial court erroneously found Mr. Kemp’s Section 2255 motion, which had to be filed within one year of the judgment of conviction becoming final, was untimely. Almost two years later, Mr. Kemp moved the same court to re-open his proceedings under Rule 60(b). The timeliness of the Rule 60(b) motion turned on whether the trial court’s erroneous dismissal of the Section 2255 motion (because finality ran from the co-defendants’ final judgment on appeal not Mr. Kemp’s) was a “mistake” under subsection (b)(1) or an “other reason that justifies relief” under subsection (b)(6).
The near-unanimous Supreme Court held that “a judge’s errors of law are indeed ‘mistake[s]’ under Rule 60(b)(1).” It affirmed the Eleventh Circuit’s holding that Mr. Kemp’s Rule 60 motion was untimely because it was controlled by subsection (1), which covers “mistake,” and not subsection (6)’s “any other reason that justifies relief.” Although the Court described subsection (6) as a “catchall,” it explained that it applies only when subsections (1) through (5) provide no basis for relief. Even then, only “extraordinary circumstances” merit reopening a final judgment. Mr. Kemp had tried to parse “mistake” to apply only to factual errors by someone other than the judge and not obvious legal errors, such as misreading Section 2255’s triggering date for the running of limitations. The Court held that “mistake” included any legal error by the judge and was not limited to “obvious” ones, as even the prevailing Government had argued.
Post-judgment relief in Maryland
Maryland has similar rules on post-judgment relief but with some crucial distinctions. First, in ordinary post-trial appellate practice, Maryland Rules 2-532 and 2-533 require parties to file any motions for JNOV or a new trial within ten days after entry of judgment. After bench trials, Rule 2-534 sets the same 10-day deadline for motions to alter or amend the judgment. (Mercifully, the federal rules committee recognized the 10-day deadline’s deleterious impact on the quality of post-trial briefing and revised Federal Rules 52 and 59 to allow 28 days for such motions.)
Second, Rule 2-535 provides various procedural options under the trial court’s “Revisory power” to change its judgment even after the 10-day deadline for JNOV and new trial motions has passed and—in some instances—even after the 30-day deadline to notice an appeal has passed. For jury trials, the parties have 30 days after entry of judgment to seek any judgment-altering relief that would be available under Rule 2-534. Md. R. 2-535(a). The parties also have 30 days to seek “a new trial on the ground of newly-discovered evidence that could not have been discovered by due diligence in time to move for a new trial” under Rule 2-533. Md. R. 2-535(c) (emphasis added).
When more than 30 days have passed since the entry of judgment, Rule 2-535 limits Maryland litigants to even fewer options to seek judgment-altering relief from the trial court. These can be the motions of last resort if no appeal was timely filed. Unlike parties in federal court, state-court parties may move “at any time” for the trial court to “exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.” Md. R. 2-535(b) (emphasis added). Recall that Mr. Kemp had only a year, and only if reasonably timed, to move on the grounds of “mistake” under Federal Rule 60(b)(1). His Rule 60(b) motion would not have been per se untimely in Maryland state court under Rule 2-535(b). Similarly, a Maryland trial court may sua sponte or on motion of any party correct “clerical mistakes in judgments, orders, or other parts of the record.” Md. R. 2-535(d) (emphasis added). As in federal court, if an appeal has been docketed, clerical mistakes can be corrected only “with leave of the appellate court.” Id.
Of course, the best avenue for post-judgment relief is a timely appeal if timely post-trial motions have been denied. If that window has closed, procedural options are limited. But not all is necessarily lost.
The Skirts Requirement: Dress Code Gender Discrimination in Charter Schools
On June 14, 2022, the Fourth Circuit published Bonnie Peltier v. Charter Day School, Inc., a 10-to-6 en banc opinion authored by Senior Judge Keenan. When a North Carolina charter school imposed a dress code requiring that girls wear skirts to school, the full court signed on to tackle two issues related to gender equality in the schools. First, are charter schools “state actors” that must provide equal protection to its students under the constitution? Second, are dress codes categorically exempt from Title IX’s prohibition against gender discrimination?
On its face, the questions seem innocuous. But under the surface, this 103-page slip opinion quickly unveils a raucous caucus of diverging views on gender stereotypes, debating whether the dress code exemplifies chivalry or just mere chauvinism.Read More…
Federal Judicial Conference Unanimously Approves Proposed Rule 702 Amendments
Daubert’s evolution passed a major milestone last week, one that should affect the admissibility of expert testimony in Maryland’s state and federal trial courts going forward. On June 7, the Judicial Conference Committee on Rules of Practice and Procedure unanimously approved the proposed amendments to Federal Rule of Evidence 702. Of course, Maryland state courts follow Md. Rule 5-702. But the Court of Appeals of Maryland, in 2020, formally adopted the Daubert standard, which applies FRE 702, for construing Rule 5-702. Rochkind v. Stevenson, 471 Md. 1 (2020). This leaves no room to interpret the state rule for admitting expert testimony any differently than the federal rule.
If approved by Congress (after review by the Judicial Conference and U.S. Supreme Court), the amended Rule will become effective on December 1, 2023. It states:
Rule 702. Testimony by expert witnesses.
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:
a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
b) the testimony is based on sufficient facts or data;
c) the testimony is the product of reliable principles and methods; and
the expert has reliably appliedthe expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
The new clause requiring each of Rule 702’s four reliability factors to be “demonstrated by a preponderance of the evidence” is not a substantive change but rather a point of emphasis. It directly targets the recurring error of judges who construe challenges to the sufficiency of the expert’s facts or data or the reliability of the expert’s case-specific application of principles and methods as jury questions that merely “go to the weight of the evidence.” Under the rule, this has always been a threshold question for the judge to decide as gatekeeper. Except judges have too often approached their gatekeeping role with excessive leniency. (Of course, other judges could be far too strict as gatekeepers under Rule 702, but the rules committee has not identified this as a problem.)
Last year, the Fourth Circuit Court of Appeals handed down a precedential opinion applying the proposed revised text and emphasizing that trial judges must ensure that each element of Rule 702 is met by a preponderance of the evidence. See Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021). The Sardis opinion cautions trial judges that, under Daubert and Rule 702, they cannot delegate to jurors the judicial inquiry into whether Rule 702’s subsections (a) through (d) are all satisfied.
Going forward, challenges to an expert’s testimony should “go to the weight of the evidence” and not admissibility only after the trial judge has found that the testimony is probably “based on sufficient facts or data,” probably “the product of reliable principles and methods,” and probably “a reliable application of the principles and methods to the facts of the case.” Well-credentialed experts cannot bypass judicial scrutiny by merely characterizing their facts and data as sufficient and their methodology as reliable. The proponent of the expert testimony remains bound to show the trial judge that their testimony is likely to be reliable and helpful to the jury.
MSBA Appellate Practice Skills Program: July 18, 20 & 21
The MSBA, joined by the editors of the Appellate Practice for the Maryland Lawyer: State and Federal (Paul Mark Sandler, Andrew D. Levy, and Steven M. Klepper), judges of the Court of Appeals and Court of Special Appeals, practitioners, and representatives from the Office of the Public Defender and Office of the Attorney General, are introducing a comprehensive appellate practice skills workshop. The three-day virtual event will run on Monday July 18, Wednesday, July 20 and Thursday July 21. For a full agenda, list of presenters and registration information, click here.
June 2022 Maryland Certiorari Grants
The Maryland Court of Appeals on Friday granted review in three cases.Read More…
Ocean City Panels on SCOTUS and Election Law
By Steve Klepper (Twitter: @MDAppeal)
If you’re attending the MSBA Annual Summit this week in Ocean City, we hope you’ll stop by two panels sponsored or co-sponsored by the MSBA Section of Litigation’s Appellate Practice Committee
Thursday, June 2, at 11:30 a.m.
Redistricting 2022: Latest Developments on Election Litigation and Legislation
(co-sponsored with the Administrative Law Section)
- Hon. Lynne Battaglia (Senior Judge of the Court of Appeals) who, sitting by designation on the Anne Arundel County Circuit Court, authored the opinion in Szeliga v. Lamone.
- Prof. Kimberly Wehle (University of Baltimore School of Law), known nationally for her commentary on election law and other major legal issues.
- Timothy F. Maloney (Joseph, Greenwald & Laake), who argued for the successful challengers to Prince George’s County’s redistricting map in Prince George’s County v. Robert E. Thurston.
Special thanks go out to John Grimm, who was instrumental in putting the program together, and to Judge Andrea Leahy, who had been scheduled to moderate but had to drop out. (I’ll be pinch hitting for her.)
Friday, June 3, at 9:45 a.m.
Supreme Court Term in Review
- Mark Joseph Stern (Twitter @mjs_DC), a senior writer with Slate, and a leading Supreme Court commentator
- Jaime Santos (Twitter @Jaime_ASantos), a partner in Goodwin’s Supreme Court and Appellate Litigation practice, and a former co-host of the Strict Scrutiny podcast
In case you hadn’t noticed, the Supreme Court has been in the news more than usual, and Mark and Jaime will be discussing the big cases and trends. I’ll have the pleasure of moderating what should be a lively panel, to say the least.