Seeking Review of an Unfavorable Judgment Directly From the District Court

Practical Law Legal Update 4-539-3665 (Approx. 7 pages)

Seeking Review of an Unfavorable Judgment Directly From the District Court

by Practical Law Litigation

Seeking Review of a Judgment Directly From the District Court

FRCP 60(b) permits a party to seek review of an unfavorable judgment or order directly from the district court. As a result, making a motion under this rule may be an efficient option for counsel seeking to obtain relief from an undesired outcome. Specifically, FRCP 60(b) allows a party to seek relief from a final judgment, order or proceeding directly from the district court judge in the following circumstances:

Mistake, inadvertence, surprise, or excusable neglect (FRCP 60(b)(1)).
Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under FRCP 59(b) (FRCP 60(b)(2)).
Fraud (whether previously called intrinsic or extrinsic), misrepresentation or misconduct by an opposing party (FRCP 60(b)(3)).
The judgment is void (FRCP 60(b)(4)).
The judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable (FRCP 60(b)(5)).
Any other reason that justifies relief (FRCP 60(b)(6)).

Counsel should consider this rule when deciding how best to challenge an unfavorable decision. However, there are important limitations to keep in mind when making an FRCP 60(b) motion, in particular where counsel seeks the same relief through the FRCP 60(b) motion they could seek on appeal.

Timing

A motion made under FRCP 60(b) must be made within a "reasonable time" after entry of the judgment or order or the date of the proceeding being challenged (FRCP 60(c)). For subsections (b)(1), (2) and (3), a reasonable time is further defined as no more than a year after entry of the judgement or order or the date of the proceeding (FRCP 60(c)).

However, the somewhat forgiving time limit set out in FRCP 60(c) is not meant to serve as a substitute for a timely filed appeal under Federal Rule of Appellate Procedure (FRAP) 4. As a result, some courts have held that an FRCP 60(b) motion should be made promptly, with a "reasonable time" in some circumstances being the time in which a party would have to appeal (see, for example, Mendez v. Republic Bank, No. 12-cv–2585, , at *8 (7th Cir. July 25, 2013); In re 310 Assocs., 346 F.3d 31, 35 (2d Cir. 2003)).

Notably, however, if an FRCP 60(b) motion is filed no later than 28 days after entry of the judgment being challenged, the time to appeal is tolled (see FRAP 4(a)(4)(vi)). This allows counsel to retain the option to appeal should the FRCP 60(b) motion be ineffective.

FRCP 60(b)(1) Relief Where the District Court Made a "Mistake"

FRCP 60(b)(1) allows a district court to undo or alter a final judgment based on, among other things, a "mistake." Although there is a split in the types of "mistakes" this subsection covers, the weight of authority now suggests that counsel can seek FRCP 60(b)(1) relief to correct legal errors, an area traditionally reserved for an appellate court.

Majority Position: A District Court May Correct Legal Errors Even if Those Errors Would be Correctable on Appeal

The US Court of Appeals for the Seventh Circuit recently examined the circumstances under which a district court can correct legal errors on an FRCP 60(b) motion, modifying its prior rulings suggesting that such relief is unavailable. In Mendez v. Republic Bank, the district court had initially ruled for the plaintiff, Nereida Mendez, and the defendant, Republic Bank, timely appealed that ruling (No. 12-cv–2585, WL 3821532, at *4 (7th Cir. July 25, 2013)). However, the district court later changed course after reading a magistrate judge's report and recommendation on the issues, which convinced the court that it should have ruled in favor of Republic Bank. To fix this error, the district court invited Republic Bank to file an FRCP 60(b) motion for relief from judgment. Republic Bank then moved to remand the appeal to the district court and filed an FRCP 60(b) motion. The district court granted the motion and then issued a new order in favor of Republic Bank ( WL 3821532, at *4).

On appeal, the Seventh Circuit discussed the applicability of FRCP 60(b)(1). The court found that prior reluctance to extend the rule to correct appealable errors stemmed from a concern that parties could use FRCP 60(b) to "circumvent the deadlines for filing appeals" and "revive cases in which a party failed to appeal within the standard deadline" (, at *7). Where, however, the rule is "not a device to avoid expired appellate time limits," a party may use FRCP 60(b) as an alternate way to correct errors that could also be corrected on appeal (, at *7).

The court concluded that where a district court judge is convinced of a legal or factual error, there is no purpose in prohibiting the court from remedying that error itself. This conclusion is consistent with the Federal Rules of Civil Procedure's goal of securing a "just, speedy and inexpensive" resolution of disputes and also spares parties of the effort and expense of "preparing an appeal and educating a new court on the particulars of their case" (, at *7 (citing FRCP 1)).

In reaching this result, the Seventh Circuit joined several other circuit courts that have permitted parties to use FRCP 60(b) to seek relief from judgment for legal errors that also may be corrected on appeal. Many of these decisions also emphasize that while this remedy is available, it cannot be used to circumvent appellate filing deadlines.

Second Circuit: Finding that "Rule 60(b)(1) [is] available for a district court to correct legal errors by the court," and noting that such relief may not be requested after the time for appeal has elapsed (In re 310 Assocs., 346 F.3d at 35) (citations omitted); see also Colucci v. Beth Israel Med. Ctr., No. 12–cv-3694, , at *2 (2d Cir. Aug. 27, 2013)).
Fifth Circuit: Noting that "[t]he law of this circuit permits a trial judge, in his discretion, to reopen a judgment on the basis of an error of law" (FDIC v. Castle, 781 F.2d 1101, 1104 (5th Cir. 1986) (citation omitted)).
Sixth Circuit: Rule 60(b)(1) relief is available where "the judge has made a substantive mistake of law or fact in the final judgment or order" (United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002) (citation omitted)).
Ninth Circuit: "The law in this circuit is that errors of law are cognizable under Rule 60(b)" (Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982) (citation omitted)).
Tenth Circuit: Reiterating that "certain substantive mistakes in a district court's rulings may be challenged by a Rule 60(b)(1) motion," but holding that such a motion must be filed within the time frame required for the filing of a notice of appeal (Cashner v. Freedom Stores, Inc., 98 F.3d 572, 578 (10th Cir. 1996)).
Eleventh Circuit: Rule 60(b(1) "encompasses mistakes in the application of the law" (Parks v. U.S. Life & Credit Corp., 677 F.2d 838, 840 (11th Cir. 1982) (citation omitted)).
D.C. Circuit: Rule 60(b)(1) motion for mistake in the law permitted, but only to correct limited types of substantive errors (Hall v. C.I.A., 437 F.3d 94 (D.C. Cir. 2006) (citations omitted)).

Minority Position: Rule 60(b)(1) Does Not Include Mistakes in the Law

By contrast, a few circuit courts have taken a more narrow view and determined that an error in the law generally does not fall within the scope of FRCP 60(b)(1).

First Circuit: An error of law "cannot be regarded as a 'mistake' within the purview of Rule 60(b)(1)" (Fisher v. Kadant, Inc., 589 F.3d 505, 513 n.5 (1st Cir. 2009)).
Third Circuit : The Third Circuit remains undecided, though precedent indicates that a "Rule 60(b) motion 'may not be used as a substitute for an appeal, and that legal error, without more' does not warrant relief under that provision" (United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003) (quoting Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988)). The court has since found that "the precise bounds of this prohibition in the context of Rule 60(b)(1) are unclear," and held open the possibility that legal error could be addressed under FRCP 60(b)(1), provided a motion is made before the time for appeal has run (James v. Virgin Islands Water and Power Authority, 119 F. App'x. 397, 401 (3d Cir. 2005)).
Eight Circuit: Noting that "'relief under Rule 60(b)(1) for judicial error other than for judicial inadvertence' is not available" (Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 460-61 (8th Cir. 2000) (quoting Fox v. Brewer, 620 F.2d 177, 180 (8th Cir. 1980)).

FRCP 60(b)(6): The Catch-all

FRCP 60(b)(6) permits relief from a judgment for "any other reason that justifies relief," and does not include an outer bound on the time limitation to make the motion. However, the Supreme Court has limited this catch-all category to "extraordinary" circumstances (Gonzales v. Crosby, 545 U.S. 524, 535 (2005); Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64 (1988)). Moreover, an FRCP 60(b)(6) motion must be based on some reason other than those stated in subsections (1)-(5), and thus cannot be used to circumvent the one-year outer time limitation provided for subsections (1), (2) or (3) (see FRCP 60(c); Liljeberg, 486 U.S. at 863 & n.11; United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir. 2009)).

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