No. 95-990

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

ROLAND A. JONES, PETITIONER

v.

TOGO WEST, SECRETARY OF THE ARMY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

DREW S. DAYS, III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

ANTHONY J. STEINMEYER
MARC RICHMAN
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether the court of appeals correctly affirmed the
district court's denial of petitioner's untimely motion
for relief from judgment and motion for a new trial,
both filed after the court of appeals had affirmed the
district court's judgment against him.

(I)

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TABLE OF CONTENTS

Opinions below  . . . . 1
Jurisdiction  . . . . 1
Statement  . . . . 2
Argument  . . . . 3
Conclusion  . . . . 5

     TABLE OF AUTHORITIES
Constitution, statutes and rules:
U.S. Const. Amend. XIV  . . . . 2
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e
et seq . . . . 2
28 U.S.C. 1981  . . . .2, 3 
28 U. S. C. 1985  . . . . 2, 3
Fed. R. Civ. P:
  Rule 59  . . . . 3, 4
  Rule 59(b)  . . . . 4
  Rule 59(e)  . . . . 4
  Rule 60(b)  . . . . 4
  Rule 60(b)(l)-(3)  . . . . 3, 4 
  Rule 60(b)(4)-(6)  . . . . 4

(III)

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In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-990

ROLAND A. JONES, PETITIONER

v.

TOGO WEST, SECRETARY OF THE ARMY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
   FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION    
              
      OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 13a-
14a) is not reported. The order of the district court
(App., infra, la-2a) is not reported. The earlier
opinion of the court of appeals (Pet. App. 10a-12a)
affirming the district court's judgment against
petitioner on the merits of his ease is not reported.

JURISDICTION

The judgment of the court of appeals was entered on
July 31, 1995. A petition for rehearing was denied on
September 29,1995. Pet. App. 29a. The petition for a
writ of certiorari was filed on December 20, 1995. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

(1)

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2

       STATEMENT

1. a. Petitioner, a black male who served in the
United States Army from 1959 to 1980, filed suit in
1988 against the Army, various boards, and individual
officials, claiming that he had been subjected to dis-
crimination by respondents based on his race and
color, in violation of various federal laws, including
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq., and 28 U.S.C. 1981 and 1985. See Pet.
App. 20a-21a, ha. Petitioner hail been forced to retire
after obtaining the rank of lieutenant colonel because
he was not qualified for further promotion. Id. at 20a.
Petitioner alleged that his forced retirement resulted
from "a systematic policy of denying black officers
the assignments necessary to qualify for promotion."
Ibid. In two separate orders issued in 1988 and 1989, the
district court dismissed several of petitioner's claims,
including his allegations of a Title VII violation, as
well as his claims of institutional discrimination. See
Pet. App. 20a n.1. The court declined to dismiss the
Section 1981 and 1985 claims against the Army Board
for the Correction of Military Records ("ABCMR")
and against two individual respondents. Pet. App. 20a-
21a. Following additional proceedings, the district
court granted summary judgment to respondents on
the Section 1981 and 1985 claims, but deferred, pend-
ing further information from the parties, ruling on
the summary judgment motion regarding whether the
ABCMR had failed to follow its own regulations, Pet.
App. 21a. Finally, in September, 1991, the court
granted summary judgment to respondents on the re-
maining claims. Id. at 20a-24a.

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3

b. The court of appeals affirmed in a per curiam
order dated October 29, 1992. Pet. App. 10a-l2a. The
court ruled that the district court properly rejected
all of petitioners' claims.
2. a. On January 7, 1993, after the court of appeals
had affirmed the district court judgment against him,
petitioner moved the district court for a new trial on
his claims under Sections 1981 and 1985, pursuant to
Fed. R. Civ. P. 59, and for relief from the district
court's final judgment of September 30, 1991, pur-
suant to Fed. R. Civ. P. 60(b)(l)-(3). Pet. App. 14a.
The district court denied the motions by order dated
February 10, 1994. App., infra, 1a-2a.    
b. The court of appeals affirmed. Pet. App. 13a-14a.
The court noted its earlier ruling affirming the dis-
trict court judgment on the merits and then ruled
that petitioner's Rule 59 and Rule 60(b)(l)-(3) motions
were untimely and had been correctly denied. The
court refused to consider the "plethora of issues that
have nothing to do with whether the district court
should have rejected [petitioner's] post appeal motions
as untimely." Pet. App. 14a. The court denied a
petition for rehearing. Id. at 29a.

        ARGUMENT

Petitioner seeks to raise (Pet. i, 17-23) a number of
issues that were raised and rejected, or should have
been raised, before the district court and the court of
appeals at the time of their review of the motions to
dismiss and for summary judgment. The courts below
correctly held that petitioner's post-appeal motions
were untimely filed. None of the questions presented
by petitioner challenges these rulings. See Pet. i.
Any motion for a new trial or motion to alter or
amend judgment under Federal Rule of Civil Pro-

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4

cedure 59 must be served not later than 10 days after
the entry of judgment. Fed. R. Civ. P. 59(b) and (e).
The district court's final judgment in petitioner's
case was entered on September 30, 1991. Pet. App.
14a. Petitioner filed his Rule 59 motion on January 7,
1993, 15 months later. Pet. App. 14a. The motion was
therefore untimely, A motion for relief from judg-
ment or order under Federal Rule of Civil Procedure
60(b) "shall be made within a reasonable time, and for
reasons (l), (2), and (3) not more than one year after
the judgment, order, or proceeding was entered or
taken." Plaintiff's motion for relief pursuant to Fed.
R. Civ. P. 60(b)(l)-(3) was filed on January 7, 1993
(Pet. App. 14a), 15 months after judgment and was
therefore untimely.l
The merits of petitioner's case were fully litigated
before the district court and the court of appeals.
Petitioner presents no question warranting review
by this Court.
                        
___________________(footnotes)

1 A motion for relief from judgment under Fed. R. Civ. P.
60(b)(4)-(6) must be made "within a reasonable time" of the en-
try of judgment. Petitioner does not contend that that provi-
sion is applicable to his case. In any event, there is nothing in
the record to support a finding that the courts would have
erred in concluding that 15 months was beyond a reasonable
time in the circumstances of this case.

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APPENDIX

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

Civil Action No. 1:88-cv-727-MHS

ROLAND A. JONES, PLAINTIFF

V.

SECRETARY OF THE ARMY, ET AL., DEFENDANTS

[FILED FEB. 10, 1994]

        ORDER

This action is before the Court on numerous
motions filed by plaintiff.  For the reasons stated
below, the Court denies the motions.
In September 1991, the Court granted defendants
summary judgment on plaintiffs remaining claims.
In October 1991, plaintiff appealed the Court's order.
In October 1992, the Eleventh Circuit Court of
Appeals affirmed this Court's grant of summary judg-
ment to defendants and ordered plaintiff to pay to
defendants the costs of the appeal. Plaintiff has
moved for sanctions against counsel for defendants,
for relief from judgment, for a recall of summary
judgment, and for a new trial.

(la)

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2a

The Court concludes that, under Federal Rule of
Civil Procedure 11, no grounds exist for awarding
plaintiff sanctions against defense counsel.  The
Court also finds no grounds for granting plaintiff
relief from summary judgment or a new trial.
In summary, the Court DENIES plaintiff's motion
for sanctions against counsel for defendants [#111-l];
for relief of judgment [#112-l]; for recall of judgment
[#112-2]; for a new trial [#112-3]; for relief of judgment
[#113-1] for recall of summary judgment [#113-21; for a
new trial [#l 13-3]; and DISMISSES this action.

IT IS SO ORDERED, this 10th day of February,
1994.

/s/ MARVIN H. SHOOB
Marvin H. Shoob, Senior Judge
United States District Court
Northern District of Georgia

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