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As the U.S. Supreme Court on Tuesday analyzed judicial powers to reopen dismissed cases, a Halliburton attorney sought to steer oral arguments toward questions the high court hadn't agreed to address, testing some justices' patience and eventually prompting the attorney to insist he wasn't "afraid of the question presented."

The maneuvering occurred during arguments in Waetzig v. Halliburton Energy Services Inc., a technical dispute involving civil procedure, and it was apparently anticipated by Vincent Levy of Holwell Shuster & Goldberg LLP, counsel for a onetime Halliburton account leader whose termination at age 66 spurred him to sue under the Age Discrimination in Employment Act.

Question Presented in Waetzig v. Halliburton Energy Services

Whether a Federal Rule of Civil Procedure 41 voluntary dismissal without prejudice is a "final judgment, order, or proceeding" under FRCP 60(b).

Levy kicked off his argument Tuesday by contending that voluntary dismissals without prejudice under Federal Rule of Civil Procedure 41 are "final proceedings" and therefore eligible for reopening under FRCP 60. But he swiftly shifted to accusing Halliburton of deflecting attention from that issue.

Halliburton did so during briefing, Levy said, by disputing court jurisdiction over Gary Waetzig's objection to an arbitration award — an issue where Halliburton might have stronger odds of success.

"[Halliburton] mostly avoids these points" about Rules 41 and 60, Levy said. "It leads by asking the court to affirm on the new theory that the district court lacked jurisdiction to vacate an arbitration award after reopening the case. This objection is not covered by the question presented."

Levy reiterated that point a few minutes later after Chief Justice John Roberts asked if Waetzig — who lost in a 2-1 decision at the Tenth Circuit — is now trying to "collaterally attack the arbitration award" in an end-run around jurisdictional barriers.

Levy acknowledged that Waetzig is assailing the award favoring Halliburton. But he stressed that distinct legal issues apply to the reopening of Waetzig's case — which was mistakenly dismissed rather than being stayed and needs Rule 60 relief because limitation periods have expired — and Waetzig's assertions that an arbitrator flouted procedural requirements.

"Those [arbitration] issues do not go to the question presented," Levy said.

During briefing, Halliburton spotlighted the Supreme Court's 2022 decision in Badgerow v. Walters, which curtailed the ability of courts to find a basis for jurisdiction when asked to vacate arbitration awards. On Tuesday, while Levy was still delivering his argument, Justice Elena Kagan said Waetzig would "have a tough row to hoe on the Badgerow question," but she added, it "doesn't seem to be the jurisdictional question that's in front of us."

Despite those comments, Matthew D. McGill of Gibson Dunn & Crutcher LLP, who represents Halliburton, used the very first words of his argument Tuesday to insist that Waetzig's arbitration challenge is doomed by Badgerow and earlier precedent.

"I want to start with the question of jurisdiction. We know from Badgerow that a … motion to vacate under the Federal Arbitration Act requires its own basis for federal jurisdiction," McGill said. "Rule 60 can't supply it, and that was the only basis for jurisdiction ever presented below. That's the argument that there's no jurisdiction here."

Soon after, Justice Ketanji Brown Jackson said, "It's interesting to me that you raised Badgerow," and she suggested that dialogues during Levy's argument established that Badgerow is outside the ambit of Waetzig's high court case.

"I was surprised, given our colloquy earlier about the fact that there are two different jurisdictional arguments here," Justice Jackson said. "So, what is this Badgerow argument? Like, why are we looking at that or caring about that in this context?"

She also asked why Halliburton hadn't added Badgerow to the question presented in one of its briefs, and McGill first replied, "I don't view it as the respondent's job to rewrite the petitioner's question presented."

He added, "Candidly, I did not understand or fully contemplate the jurisdictional significance of the petitioner's motion to vacate until we started briefing on the merits."

Mere seconds later, Justice Kagan chimed in and suggested that the omission mattered less than the simple fact that Halliburton was jumping the gun by asking the high court to tackle something better left for a lower court on remand.

"You might have a very good argument on Badgerow … that there is no jurisdiction to vacate the arbitration award. But that's not what's in front of us," Justice Kagan said. "What's in front of us is the 60(b) motion. … It's just not the time to be talking about Badgerow."

McGill then tried to liken Waetzig's case to a situation where "the jurisdictional question has to come first," but Justice Jackson again balked, saying, "I don't understand that at all."

"There was a challenge as to whether or not the district court properly granted a motion to reopen [Waetzig's case], and that was the thing that this court took cert on," she said.

Besieged by skepticism, McGill ultimately sought to convince the court that he was merely highlighting a crucial element of the litigation, not ducking anything. "I'm not afraid of the question presented, but the jurisdictional point is important here," he said.

Generally speaking, when the justices are pondering whether to accept a pending petition, litigants routinely frame questions differently in hopes of strengthening their position or persuading the court to examine a specific topic. It's not uncommon for that jockeying to continue even after the justices grant review and disclose the questions they've agreed to answer.

But those tactics can be risky since the justices tightly control their docket and devote their limited energies to contemplating the questions they've agreed to answer. Coincidentally, testy exchanges about deviation from a question presented also occurred earlier Tuesday during Supreme Court arguments in the case Thompson v. U.S.

"You're asking us to decide something much broader than the straightforward question … that was in the question presented and that was in the cert petition," Justice Brett Kavanaugh told a lawyer at one point in the Thompson arguments.

But stretching the scope of a case can also bear fruit. One of the best-known examples occurred in Dobbs v. Jackson Women's Health Organization, where Mississippi officials initially won review of a fairly typical abortion-rights question, but then pivoted to asking the justices to strike down Roe v. Wade — a gambit that ultimately succeeded.

In Waetzig's case, the Tenth Circuit's ruling broke with the conclusions of most circuits that have addressed the Rule 60 issue, but the Denver-based appeals court also wrote one of the more in-depth decisions on the issue. Another substantive and widely cited opinion emerged in 2013 at the Fifth Circuit, which in Yesh Music v. Lakewood Church rejected a "technical interpretation" of when a dismissal is "final," holding that "a plain reading of 'final' supports defining it as something which is practically 'finished,' 'closed' or 'completed.'"

It wasn't clear from Tuesday's arguments how the justices overall were leaning, but Justices Kagan and Jackson were joined by Justices Neil Gorsuch and Sonia Sotomayor in seeming sympathetic toward Waetzig's view of Rule 60, and Justice Clarence Thomas also made a passing comment that seemed unpersuaded by one of Halliburton's main points. Justice Roberts, however, sounded relatively skeptical, and Justices Kavanaugh, Samuel Alito and Amy Coney Barrett didn't speak during the argument — which, at roughly 49 minutes, was among the shortest of the term.

The dispute between Waetzig and Halliburton hasn't attracted widespread interest, but the parties and some observers have said the implications are considerable. Waetzig, for instance, has averred during briefing that the Tenth Circuit's holding would create a "twilight zone between interlocutory and final matters where courts bizarrely would be powerless to correct mistakes and frauds."

The U.S. Chamber of Commerce has voiced a contrary view, predicting in an amicus brief that a win for Waetzig would invite "litigation gamesmanship."

"Lawsuits that left the federal courts by the plaintiff's own volition could be strategically resurrected years later — after the statute of limitations has expired," the chamber told the high court in a December 2024 brief supporting Halliburton.

A decision in the case is expected by late June.

Waetzig is represented by Vincent Levy, Kevin D. Benish, Jack L. Millman and Byron J. Hazzard of Holwell Shuster & Goldberg LLP, and Spencer J. Kontnik and Austin M. Cohen of Kontnik Cohen LLC.

Halliburton is represented by Matthew D. McGill, Jonathan C. Bond, Patrick J. Fuster, Lochlan F. Shelfer and Joshua R. Zuckerman of Gibson Dunn & Crutcher LLP, and Heather F. Crow of The Kullman Firm PLC.

The case is Waetzig v. Halliburton Energy Services Inc., case number 23-971, in the Supreme Court of the United States.