Stump v. Baca

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 30 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

SHIRLEY J. STUMP, doing business as Multi-Skill Computer Training Center,

Plaintiff-Appellant, No. 96-2205 (D.C. No. CIV-93-1355-JC) v. (D. N.M.)

PATRICK BACA, New Mexico Secretary of Labor; RONALD MARTINEZ, Director, New Mexico Department of Labor Job Training Division; CONNIE RIESCHMAN, Chief Legal Counsel, New Mexico Department of Labor; PATRICK NEWMAN, Bureau Chief, New Mexico Department of Labor Job Training Division; ERNESTO GOMEZ, Supervisor, New Mexico Department of Labor Job Training Division; NANCY CHAVEZ, Field Representative, New Mexico Department of Labor Job Training Division, Las Cruces Labor Service; and RACHEL TAIS, Field Representative, New Mexico Department of Labor Job Training Division, Silver City Labor Service, individually and as employees of the New Mexico Department of Labor,

Defendants-Appellees. ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

On June 28, 1996, the district court entered its order granting summary

judgment to defendants on plaintiff-appellant Shirley J. Stump’s civil rights

complaint. On July 23, plaintiff filed a motion to reconsider which was denied by

the district court in an order entered on August 7. Plaintiff filed her notice of

appeal on August 29.

Plaintiff, appearing pro se, asks us to review the grant of summary

judgment by the district court. We have no jurisdiction to review the grant of

summary judgment; our review of the district court’s order denying plaintiff

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

-2- postjudgment relief under Fed. R. Civ. P. 60(b) reveals no abuse of discretion,

and we affirm.

Under Fed. R. App. P. 4(a), plaintiff had thirty days from June 28, the date

of the entry of summary judgment, in which to file her notice of appeal from that

order. Instead of filing a timely notice of appeal, however, plaintiff, on July 23,

filed a “Motion to Set Aside and To Reconsider or In The Conjunctive Leave to

Amend.” Because this motion was served after the ten-day deadline for filing a

motion under Fed. R. Civ. P. 59(e), the court properly treated it as a motion for

relief under Fed. R. Civ. P. 60. See Van Skiver v. United States, 952 F.2d 1241,

1243 (10th Cir. 1991).

The district court’s order denying plaintiff Rule 60(b) relief was filed on

August 7. Plaintiff filed her notice of appeal on August 29, making it timely as to

the order denying Rule 60(b) relief, because it was within the thirty-day period

prescribed by Rule 4(a), but, as discussed below, too late to secure review of the

underlying judgment.

An appeal from the denial of a Rule 60 motion “raises for review only the

district court’s order of denial and not the underlying judgment itself.” Van

Skiver, 952 F.2d at 1243. Our review of the briefs and the record in this appeal

reveals no grounds upon which Rule 60 relief would have been proper. The

-3- district court did not abuse its discretion in refusing to grant such relief, and its

August 7th order to that effect is affirmed.

Because the notice of appeal here was filed more than thirty days after the

entry of the June 28 summary judgment order, it was untimely and did not vest

this court with jurisdiction to review that order. See Certain Underwriters at

Lloyds of London v. Evans, 896 F.2d 1255, 1256 (10th Cir. 1990). In an effort to

avoid such a result, plaintiff cites the unique circumstances doctrine of Thompson

v. Immigration & Naturalization Service, 375 U.S. 384 (1964), as authority

justifying our review of the summary judgment despite the untimely notice of

appeal. That case, however, will not support jurisdiction in this situation. The

unique circumstances doctrine, which is strictly construed, see Osterneck v. Ernst

& Whinney, 489 U.S. 169, 179 (1989), “permits an untimely appeal to go forward

‘where a party has performed an act which, if properly done, would postpone the

deadline for filing an appeal and has received specific assurance by a judicial

officer that this act has been properly done.’” Home & Family, Inc. v. England

Resources Corp. (In re Home & Family, Inc.), 85 F.3d 478, 479 (10th Cir. 1996)

(quoting Osterneck, 489 U.S. at 179).

Plaintiff argues that the poor advice she received from an attorney coupled

with the fact that she did not receive a copy of the summary judgment order until

-4- July 9 1 should constitute unique circumstances sufficient to excuse her late notice

of appeal. These circumstances do not meet the strict requirement of Osterneck.

There is no evidence that any judicial officer assured plaintiff that filing her

motion to reconsider could somehow postpone the deadline for filing her notice of

appeal.

Nor is plaintiff saved by the fact that the district court accepted the filing

and ruled on it. The court appropriately accepted the filing as one under Rule

60(b), and ruled on it as it was required to do. This action in no way implies the

grant of additional time in which to file a notice of appeal from the underlying

judgment. See United States v. Martinez, 681 F.2d 1248, 1254 (10th Cir. 1982).

The judgment of the United States District Court for the District of New

Mexico denying relief to plaintiff under Rule 60(b) is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge

1 Plaintiff would have needed to file a Rule 59(e) motion by Monday, July 15, 1996, and/or a notice of appeal by Monday, July 29, 1996 in order to have the merits of the summary judgment order reviewed by either the district court or this court.

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