James v. England

120 F. App'x 100

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 13, 2005
• Docket: No. 03-57157
• Status: Published

Opinion

MEMORANDUM

**

Larry R. James appeals the district court’s October 6, 2003 order denying his second motion for relief from judgment in his civilian employment discrimination action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir.2004), and we affirm.

James did not timely file a notice of appeal or tolling motion from either the underlying December 26, 2001 summary judgment or the August 15, 2002 order denying James’s first motion for relief from judgment. See Fed. R.App. P. 4(a); Browder v. Director, Dep’t of Corr. of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (Rule 4’s time limits are “mandatory and jurisdictional”). Accordingly, the scope of this appeal is limited to the order denying James’s second motion for relief from judgment.

Contrary to James’s contention, the district court did not abuse its discretion in construing James’s August 14, 2003 motion as a second motion for relief from the underlying summary judgment. See, e.g., SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.2001) (reversal of “a district court’s exercise of its discretion” is appropriate only if “we have a definite and firm conviction that the district court committed a clear error of judgment”). Furthermore, to the extent that James’s August 14, 2003 motion was brought pursuant to Rule 60(b)(6), the district court did not abuse its discretion in determining that James failed to file the motion within a “reasonable time.” See Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341-42 (9th Cir.1981).

The Clerk shall amend the docket to reflect that Gordon R. England, Secretary of the Navy, is the proper appellee. See Fed. R.App. P. 43(c)(2).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.