Kemp did not open a “back door”: Sixth Circuit reaffirms that Rule 60(b)(1) cannot revive an untimely appeal caused by counsel’s misreading of finality and Rule 4

Introduction

This Sixth Circuit decision arises from a tragic incident but turns on a technical—and decisive—procedural question: can a party use Federal Rule of Civil Procedure 60(b)(1) to obtain re-entry of judgment and thereby rescue an untimely appeal when counsel misapprehended finality and the appellate deadline? In Sonja M. Overall v. Oakland County, Mich., the court answers no. Reaffirming its published precedent in FHC Equities, L.L.C. v. MBL Life Assurance Corp., and distinguishing the Supreme Court’s recent decision in Kemp v. United States, the court holds that Rule 60(b)(1) relief is unavailable where counsel’s mistake consists of a misinterpretation of clear appellate rules and finality, and where the effect would be to “open a back door” around Federal Rule of Appellate Procedure 4’s mandatory and jurisdictional deadlines.

The opinion, authored by Judge Julia Smith Gibbons and not recommended for publication, affirms the district court’s denial of Rule 60(b) relief. It underscores a critical distinction: Kemp broadened what counts as a “mistake” under Rule 60(b)(1), but it did not lower the bar for when such mistakes warrant relief. In the Sixth Circuit, counsel’s calendaring errors, misunderstandings of finality, or misreadings of Rule 4 generally will not justify reopening final judgments to circumvent firm appellate deadlines.

Background

The case stems from the line-of-duty death of Oakland County Sheriff’s Department Deputy Eric Brian Overall. While assisting Lapeer County deputies in a high-speed pursuit of Christopher J. Berak on November 23, 2017, Deputy Overall deployed stop sticks. Berak braked, steered right, and struck Deputy Overall, causing his death. Berak was later convicted of first-degree murder in state court for the incident. His widow, plaintiff-appellant Sonja M. Overall, filed a civil action asserting federal and state claims against Oakland, Lapeer, and Genesee Counties; four Lapeer County officers (Kenneth Paul, Christopher Boshell, Christopher Bowman, and Harry Lutze); and Berak.

Over time, the claims winnowed: Genesee County was dismissed with prejudice (Sept. 26, 2022); summary judgment issued for Oakland County, Lapeer County, and the four Lapeer officers (Apr. 26, 2023); and the negligence claim against Berak was dismissed without prejudice by stipulation (July 24, 2023), with the court expressly noting that this resolved the last pending claim and closed the case. The district court then entered judgment referencing the earlier summary judgment and the stipulated dismissal of the final claim (Aug. 7, 2023).

Appellant filed a notice of appeal on September 18, 2023—42 days after entry of judgment. A prior Sixth Circuit panel dismissed that appeal as untimely. The panel also rejected appellant’s argument that Federal Rule of Civil Procedure 58’s separate-document requirement created ambiguity as to finality that should excuse late filing; the panel observed that appellant’s own notice of appeal explicitly described the August 7 entry as the “Final Judgment.”

Procedural posture and the issue on appeal

After the untimely appeal was dismissed, appellant moved in the district court for relief under Rule 60(b)(1), asking the court to re-enter final judgment because counsel had mistakenly believed the August 7, 2023 judgment was not final and thus miscalendared the deadline. The district court denied relief, reasoning that Rule 60(b) cannot be used to circumvent the strictly enforced deadlines in Federal Rule of Appellate Procedure 4. Appellant filed a timely appeal from that denial. The Sixth Circuit here affirms.

The narrow question presented: Did the district court abuse its discretion by applying the wrong legal standard—particularly in light of Kemp v. United States—and by denying Rule 60(b)(1) relief based on counsel’s mistake about finality and timing?

Summary of the Opinion

The Sixth Circuit affirms the denial of Rule 60(b)(1) relief. Applying abuse-of-discretion review, the court holds:

Rule 4(a)(1)’s 30-day appeal period is mandatory and jurisdictional. Counsel’s failure to file a timely notice of appeal—and failure to seek an extension under Rule 4(a)(5) or reopening under Rule 4(a)(6)—cannot be cured via Rule 60(b)(1).
Under FHC Equities and related Sixth Circuit authority, an attorney’s misreading of clear appellate rules or finality principles is not the kind of “excusable” mistake that warrants relief. Rule 60(b) is not a substitute for an appeal.
Kemp v. United States broadened the kinds of errors that can qualify as a “mistake” under Rule 60(b)(1), including judicial legal errors, but Kemp did not alter the separate question of when such mistakes merit relief. The district court therefore did not err by denying relief without relying on Kemp.
Given that the August 7, 2023 judgment expressly disposed of the last claim and appellant’s own notice of appeal labeled it “Final Judgment,” any argument that counsel was confused about finality fails.

Analysis

Precedents cited and their role

FHC Equities, L.L.C. v. MBL Life Assur. Corp., 188 F.3d 678 (6th Cir. 1999). The anchor precedent. There, like here, a party missed the appellate deadline and sought Rule 60(b)(1) relief based on counsel’s misunderstanding of the rules. The Sixth Circuit held that permitting Rule 60(b)(1) to rescue such defaults would render Rule 4’s limitation “meaningless” and allow a “second bite at the appeal apple.” The court treats Overall’s situation as “nearly identical” and therefore controlled by FHC Equities.
Kemp v. United States, 596 U.S. 528 (2022). The Supreme Court held that “mistake” in Rule 60(b)(1) includes judicial errors of law (and more broadly, mistakes of law or fact by parties or judges). The Sixth Circuit here emphasizes that Kemp concerns what errors qualify as a “mistake,” not when relief should be granted. It does not override circuit law that counsel’s inexcusable litigation errors do not warrant reopening a judgment to evade Rule 4 deadlines.
Blue Diamond Coal Co. v. Trustees of UMWA Combined Benefit Fund, 249 F.3d 519 (6th Cir. 2001). Cited for the strong policy favoring finality of judgments and the narrow construction of Rule 60(b) relief.
Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291 (6th Cir. 1989). Rule 60(b) cannot be used as a substitute for an appeal.
Broach v. City of Cincinnati, 244 F. App’x 729 (6th Cir. 2007). Allowing Rule 60(b) to bypass Rule 4 would “open a back door” to late appeals—a phrase the panel reprises to describe the danger of appellant’s position.
Cacevic v. City of Hazel Park, 226 F.3d 483 (6th Cir. 2000); McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586 (6th Cir. 2002). Missing deadlines and counsel’s mistaken legal advice do not constitute excusable neglect or warrant Rule 60(b)(1) relief under Sixth Circuit law.
Yeschick v. Mineta, 675 F.3d 622 (6th Cir. 2012); In re Ferro Corp. Derivative Litigation, 511 F.3d 611 (6th Cir. 2008); Hood v. Hood, 59 F.3d 40 (6th Cir. 1995). These authorities supply the standard of review (abuse of discretion) and clarify that review is limited to the denial of Rule 60(b) relief, not the underlying merits.
Baker v. Raulie, 879 F.2d 1396 (6th Cir. 1989); Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988). Emphasize the “mandatory and jurisdictional” nature of Rule 4(a)’s appellate deadlines.
Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350 (5th Cir. 1993); Kagan v. Caterpillar Tractor Co., 795 F.2d 601 (7th Cir. 1986); Cashner v. Freedom Stores, Inc., 98 F.3d 572 (10th Cir. 1996); Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465 (5th Cir. 1998); Brittingham v. Wells Fargo Bank, N.A., 543 F. App’x 372 (5th Cir. 2013). Sister-circuit cases in accord: counsel’s misapprehension of the law or court rules does not justify Rule 60(b) relief.

Legal reasoning

The court proceeds through a straightforward but rigorous chain of reasoning:

Standard of review limits the inquiry. The panel reviews the denial of Rule 60(b) relief for abuse of discretion, asking whether the district court applied the correct legal standard and whether the asserted circumstance fits within Rule 60(b)’s limited grounds. It does not revisit the underlying merits judgment.
Rule 4(a)(1) sets an inflexible 30‑day deadline to appeal, subject only to the rule’s own carefully delimited safety valves (an extension under Rule 4(a)(5), or reopening under Rule 4(a)(6)). Appellant filed the notice of appeal 42 days after the August 7 judgment, sought neither an extension nor reopening, and was therefore out of time.
The finality of the August 7 judgment was clear. The July 24 order dismissed the only remaining claim (the negligence claim against Berak), stating it “resolves the last pending claim and closes the case.” The August 7 judgment referenced that dismissal and the April 26 summary judgment order as the basis for entry of judgment. Appellant’s own notice of appeal described the August 7 entry as “Final Judgment.” The court had already rejected any Rule 58 separate‑document ambiguity in the earlier order dismissing the first appeal as untimely, observing that Rule 58 protects truly confused appellants—not those who call the judgment “Final Judgment” while filing late.
Rule 60(b) is not a substitute for an appeal. Under FHC Equities and related authority, counsel’s misinterpretation of clear procedural rules or finality principles is not an “excusable” litigation mistake that warrants reopening under Rule 60(b)(1). Allowing Rule 60(b) to salvage an untimely appeal would “open a back door” around the jurisdictional deadline and erode finality.
Kemp broadens “mistake,” but not entitlement to relief. Kemp holds that “mistake” in Rule 60(b)(1) includes judicial legal error and other mistakes of law or fact by any actor, but it does not guarantee relief whenever an error exists. The Sixth Circuit clarifies that Kemp does not displace FHC Equities’ separate holding: inexcusable litigation mistakes by counsel—like misreading finality or Rule 4—do not warrant relief. The district court did not ignore Kemp; it correctly applied the longstanding principle that Rule 60(b) cannot be used to revive an untimely appeal caused by counsel’s faulty reading of unambiguous rules.

Impact and implications

This opinion cements a post-Kemp equilibrium in the Sixth Circuit: Kemp affects what can count as a “mistake” under Rule 60(b)(1), but it does not relax the standard for when relief is appropriate. The key takeaways for litigants and courts include:

Missed appellate deadlines remain fatal in ordinary cases of attorney error. Counsel cannot rely on Rule 60(b)(1) to re-enter judgment and restart the clock when the error is a misinterpretation of finality or the plain text of Rule 4.
Rule 58’s separate-document requirement is not a fail-safe. It exists to protect litigants genuinely unsure about finality. Where the record and even the notice of appeal show recognition of finality, Rule 58 will not extend the time to appeal.
Use Rule 4’s built-in remedies promptly. If there is any doubt or delay, practitioners should file a protective notice of appeal within 30 days, seek an extension within the additional 30 days under Rule 4(a)(5), or, if applicable, pursue reopening under Rule 4(a)(6) where the party did not receive notice of entry. Rule 60(b) is not a viable end-run.
Kemp still matters—but differently. Litigants can invoke Kemp to argue that certain judicial errors fit within Rule 60(b)(1)’s “mistake” category. But they must also show that relief is warranted under precedent limiting Rule 60(b)’s use to extraordinary circumstances consistent with finality. Routine attorney errors in managing deadlines will not suffice.
Unpublished but harmonized. Although this opinion is not recommended for publication, it harmonizes with published Sixth Circuit law (FHC Equities, Blue Diamond Coal) and with sister-circuit authority, reinforcing a broad consensus: Rule 60(b) relief is not available for counsel’s carelessness or misapprehension of law or rules when the effect would be to evade jurisdictional appeal limits.

Complex concepts simplified

Final judgment: A decision that resolves all claims against all parties, leaving nothing for the district court to do but execute the judgment. Here, the court first granted summary judgment to the institutional defendants and officers, then the parties stipulated to dismiss the last remaining claim (against Berak), and then the district court entered judgment expressly stating the case was closed.
Rule 58’s separate-document requirement: Federal Rule of Civil Procedure 58 generally requires that judgment be set out in a separate document to make finality and the appeal deadline clear. It is designed to protect litigants who might otherwise be unsure about when the clock starts. Where the judgment’s finality is clear and the appellant treats it as final, Rule 58 will not be used to excuse a late appeal.
Rule 4(a)(1), (a)(2), (a)(5), and (a)(6): Appellants usually have 30 days to file. A notice filed early—after the court announces a decision but before entry—can spring into effect upon entry (Rule 4(a)(2)). If the 30 days are missed, an extension may be sought within the next 30 days for good cause or excusable neglect (Rule 4(a)(5)). If the party did not receive notice of entry, the district court can reopen the time to appeal for 14 days (Rule 4(a)(6)).
Rule 60(b)(1): Allows relief from a final judgment for “mistake, inadvertence, surprise, or excusable neglect.” After Kemp, “mistake” covers judicial errors too. But a litigant must still show that relief is warranted in light of finality and the limited role of Rule 60(b)—and must not use Rule 60(b) to substitute for a timely appeal.
Abuse of discretion: An appellate standard of review that asks whether the district court applied the correct legal standard, reasonably applied it to the facts, and did not rely on clearly erroneous factual findings. It is a deferential standard, especially apt for Rule 60(b) rulings.
“Mandatory and jurisdictional” deadlines: When a time limit is both mandatory and jurisdictional, courts lack authority to forgive noncompliance except as specifically allowed by rule or statute. Rule 4(a)’s deadlines fit this description.

Practical guidance for litigants and counsel

Treat every order that resolves the last claim against the last party as final. Confirm whether any claims or parties remain. If none do, calendar the 30-day deadline from entry of the final judgment.
When in doubt, file a protective notice of appeal and/or promptly move for clarification. Protective notices preserve rights and can be dismissed if unnecessary.
If you miss the 30-day window, immediately evaluate Rule 4(a)(5). You have an additional 30 days to seek an extension for excusable neglect or good cause. Do not rely on Rule 60(b) to reopen the door.
If you did not receive notice of entry, consider Rule 4(a)(6). The reopening mechanism is tightly cabined but can be decisive where its conditions are met.
Do not assume Kemp will save a late appeal. Kemp broadened the concept of “mistake,” but it did not dilute the Sixth Circuit’s rule that lawyer misreadings of clear procedural requirements do not justify Rule 60(b)(1) relief to evade Rule 4 deadlines.

Conclusion

Overall v. Oakland County reiterates a settled and stringent rule: appellate deadlines matter, and Rule 60(b)(1) is not a cure for garden-variety attorney error, even after Kemp. The Sixth Circuit’s analysis is tightly tethered to FHC Equities and the structural interests of finality that undergird Rule 60(b). By distinguishing eligibility (what counts as a “mistake”) from entitlement (when relief is warranted), the court makes clear that Kemp cannot be wielded to reopen judgments simply because counsel misconstrued finality or miscalendared a deadline. The decision reinforces best practices—file on time, seek timely extensions or reopening under Rule 4 when available, and do not rely on Rule 60(b) to salvage an appeal—and it aligns with the national consensus that Rule 60(b) cannot operate as a “back door” around jurisdictional appellate limits.