Stump v. Baca ( 1997 )

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