UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 00-30640 ____________________

DAVID JOHN SMYTH,

Plaintiff-Appellant,

versus

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Middle District of Louisiana (98-CF-916-B-M2) _________________________________________________________________ April 9, 2001

Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.

PER CURIAM:2

The linchpin for this appeal is that, pursuant to the Federal

Rules of Appellate Procedure, the appeal lies only from the denial

of a Rule 60 motion, not from the underlying summary judgment

challenged on appeal. Accordingly, our standard of review is far

more narrow. Because David John Smyth’s motion to set aside the

judgment constituted a Rule 60 motion, we review only for an abuse

of discretion. AFFIRMED.

1 Circuit Judge of the Ninth Circuit, sitting by designation. 2 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Smyth brought this action against Louisiana State University

and its Board of Supervisors (collectively LSU), claiming violation

of the Age Discrimination in Employment Act (ADEA),

et seq., and the Americans with Disabilities Act (ADA),

et seq. The magistrate judge recommended granting LSU’s

summary judgment motion. Smyth did not file objections to that

report and recommendation. On 23 March 2000, after independently

reviewing the record, and, for the reasons stated in the magistrate

judge’s report, the district court granted summary judgment for

LSU. Judgment was entered that same day.

Almost four weeks later, on 19 April 2000, Smyth filed a

motion, with supporting memorandum, to set aside the judgment,

stating that, because Smyth had been, and was, working in England

“the communication[s] between [Smyth] and his counsel [are] more

time consuming than the inflexible rule for objections allowed

for”. But, judgment having been entered on 23 March, the motion

was filed far outside the 10-day limit placed on Rule 59 motions to

amend a judgment. FED. R. CIV. P. 59(e) (“Any motion to alter or

amend a judgment shall be filed no later than 10 days after entry

of the judgment.”). Accordingly, the district court treated the

motion as a Rule 60 motion for relief from a judgment or order.

FED. R. CIV. P. 60 (allowing for relief from judgment); Halicki v.

Louisiana Casino Cruises, Inc.,

(5th Cir. 1998)

("As with untimely Rule 52(b) motions, and untimely Rule 59(a)

2 motions, a court may treat an untimely Rule 59(e) motion to alter

or amend the judgment as if it were a Rule 60(b) motion if the

grounds asserted in support of the Rule 59(e) motion would also

support Rule 60(b) relief.” (quoting 1 JAMES W. MOORE ET AL., MOORE’S

FEDERAL PRACTICE, § 60.03[4], at 60-24 (3d ed. 1998)), cert. denied,

(1999).

On 27 April, after stating that it was treating the motion as

one pursuant to Rule 60, the district court denied the motion,

concluding: “the plaintiff’s reasons for setting aside the Court’s

judgment do not come within the Rule 60(b) standards [and t]he

arguments made raise no new issues”. (Emphasis added.) Although

not required, the district court entered a judgment that same day.

On 3 May, Plaintiff filed a notice of appeal “of the final judgment

... entered ... on 27 April 2000”.

Under the Federal Rules of Appellate Procedure, the appeal

lies only from the 27 April denial of the Rule 60 motion because

the appeal period from the 23 March judgment (granting summary

judgment) expired long before the 3 May notice of appeal was filed.

FED. R. APP. P. 4(a)(1) (in civil case, notice of appeal must be

filed within 30 days after judgment appealed from is entered).

Filing the belated motion did not extend the time for appealing

from the 23 March judgment. FED. R. APP. P. 4(a)(4)(A) (time to

file appeal runs from entry of judgment disposing of Rule 59 motion

or of Rule 60 motion if latter filed no later than 10 days after

3 judgment entered). Restated, the 19 April motion, not being filed

within 10 days from the entry of the 23 March judgment, did not

extend the period for appeal from that judgment. Therefore, as

stated, at issue is only the ruling on Smyth’s Rule 60 motion.

Regarding that ruling, “the decision to grant or deny relief

under Rule 60(b) lies within the sound discretion of the district

court and will be reversed only for abuse of that discretion”.

Edwards v. City of Houston,

(5th Cir. 1996) (en

banc) (emphasis added). The reason for our quite limited review is

well-established and well-reasoned. “Appellate review of a denial

of a rule 60(b) motion must be narrower in scope than review of the

underlying order of dismissal so as not to vitiate the requirement

of a timely appeal.” Huff v. Int’l Longshoremen’s Assoc., Local

#24,

(5th Cir. 1986) (internal quotation and

citation omitted).

As the district court stated, Smyth’s Rule 60(b) motion,

contrary to that Rule, presented neither new evidence nor any other

“reason justifying relief from the operation of the judgment”.

FED. R. CIV. P. 60(b)(6). Instead, Smyth simply restated the

reasons he originally presented to the magistrate judge in

opposition to summary judgment. In essence, his motion stated the

objections he had earlier failed to file to the magistrate judge’s

4 recommendation regarding previously submitted evidence. The

district court did not abuse its discretion in denying that motion.

AFFIRMED

5