Concept

Rule 59(e) Versus Rule 60

Motion to alter or amend a judgment

Rule 59(e) Versus Rule 60

A party unhappy with a federal judgment has two post-judgment rules to choose from, and they differ in deadline, grounds, and posture. Rule 59(e) requires a motion to alter or amend a judgment to be filed no later than 28 days after entry of the judgment.¹ Rule 60(b) offers a different bargain: it authorizes relief from a final judgment for (1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence, (3) fraud, misrepresentation, or misconduct, (4) a void judgment, (5) a judgment that has been satisfied, and (6) other reasons that justify relief, and it allows the motion within a reasonable time instead of within 28 days.² Rule 60 also reaches a clerical mistake that makes the judgment misstate the court's intentions, and its newly-discovered-evidence ground covers evidence that diligence could not have produced in time for a motion for new trial.³

The two rules also aim at different targets. In Banister v. Davis, the Court described a Rule 59(e) motion as a “one-time effort to bring alleged errors in a just-issued decision” to the court's attention and as “a limited continuation of the original proceeding,” and it contrasted a Rule 60(b) motion, which “attacks an already completed judgment.”⁴ The strict time limit and the narrow job belong together. Rule 59(e) imposes strict time limits and lets the district court do no more than rectify its own mistakes, so the motion stays tied to the original proceeding.⁵

Giving the trial court that first chance fits the ordinary rule of appellate practice. Appellate courts are courts of review, and absent exceptional circumstances a party may not raise on appeal an error it did not first ask the trial court to correct.⁶ Consider the error one court of appeals noted in Olson's case: the district court dismissed without considering the likely merits of Olson's claims, although the defendants had never moved for dismissal or summary judgment before the final pretrial conference and had joined settlement negotiations.⁷ A litigant who spots an error of that kind in a just-entered judgment should put it before the trial judge, and Rule 59(e) is the motion built for that purpose.

A filing that cites no rule still gets sorted. A motion for reconsideration is ordinarily treated as a Rule 59(e) motion to alter or amend a judgment unless the movant specifies otherwise.⁸ A paper captioned only “motion to reconsider” and filed twenty days after judgment therefore counts as a Rule 59(e) motion.

A new caption cannot rescue a motion that is late under both rules. In one appeal, the plaintiffs filed their motion a year and ten months after the district court's original judgment, well outside the 28 days of Rule 59(e). The motion was equally untimely if construed under Rule 60(b), which must be filed within a reasonable time and generally within a year of the original judgment.⁹ Relabeling helps only a movant who fits a Rule 60(b) ground and meets that rule's own time limit.

Hypothetical Illustration

Two plaintiffs, Rosa and Ted, lose in separate cases and receive judgments for the defendant on the same day. On day 20, Rosa files a paper titled “motion to reconsider” that cites no rule and argues the court misread the date on a key exhibit. Because she asks the court to reconsider its decision within 28 days, the court treats her paper as a Rule 59(e) motion. Ted learns eight months after judgment, from a former employee of the defendant, that the defendant fabricated a trial exhibit, something no diligence could have exposed earlier. His 28 days have long run, so he must proceed under Rule 60(b) on its fraud ground, and his motion is timely only if he files within a reasonable time, generally within a year of the judgment. Rosa's motion corrects an alleged error in a just-issued decision. Ted's attacks a completed judgment.

The choice between the rules carries extra weight in federal habeas, where the label helps decide whether a motion counts as a second or successive application. Banister v. Davis held that a Rule 59(e) motion to alter or amend a judgment denying a petition is not a second or successive petition. Rule 59(e) imposes strict time limits and lets the district court only rectify its own mistakes, so the proceeding concerns the proper resolution of the first petition and does not operate as the functional equivalent of a second one.¹⁰ A Rule 60(b) motion, by contrast, is properly considered under that rule when it attacks “not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings,” such as fraud on the federal court.¹¹ That standard comes from Gonzalez v. Crosby. A prisoner who files within 28 days to correct the court's own mistake therefore continues the first case, while a prisoner who invokes Rule 60(b) is sorted by what the motion attacks: the merits or the integrity of the proceeding.

Exam Analysis Steps

Because the same dissatisfaction with a judgment can arrive under either rule, sort it in a fixed order that starts with the date and the request. The steps are these:

Count the days from entry of judgment, and ask whether the motion was filed no later than 28 days after entry.
Ask what the motion requests. If it asks the court to reconsider its decision and was filed within 28 days, treat it as a Rule 59(e) motion whatever its caption, unless the movant specifies otherwise.
If the 28 days have run, ask whether a listed Rule 60(b) ground fits, such as excusable neglect, newly discovered evidence, or fraud, and whether the motion was filed within a reasonable time, generally within a year of the judgment.
In a federal habeas case, ask what a Rule 60(b) motion attacks. A defect in the integrity of the habeas proceedings, such as fraud on the federal court, stays under Rule 60(b), while a Rule 59(e) motion is a limited continuation of the first proceeding and is not a second or successive application.

Rule 59(e) Versus Rule 60

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