IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-30508

_______________

MARY CAROLE HALICKI,

Plaintiff-Appellant,

VERSUS

LOUISIANA CASINO CRUISES, INC;

ARTHUR FRANK,

Defendants,

LOUISIANA CASINO CRUISES, INC.,

d/b/a Casino Rouge Carnival Corporation,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Middle District of Louisiana

_________________________

September 1, 1998

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Mary Halicki appea ls adverse rulings in her lawsuit for

employment discrimination. We affirm.

I.

Halicki worked for defendant Louisiana Casino Cruises, Inc.,1 “A ti mely notice of appeal is necessary to the exercise of appellate

jurisdiction.” U nited States v. Cooper , 135 F.3d 960, 961 (5th Cir. 1998)

(citing United States v. Robinson , 361 U.S. 220, 224 (1960)).

2 doing business as Casino Rouge, and was terminated. She sued under

title VII, claiming that her termination was the result of sex

discrimination.

The district court granted Casino Rouge's motion for summary

judgment, and entered final judgment on March 5, 1997. Under F E D

.

R

. A PP

. P. 4(a)(1), Halicki had thirty days therefrom in which t o

file notice of appeal. 1 She counted on filing a timely motion

under F ED

. R. C IV

. P. 59(e), however, which would have the effect of

suspending the thirty-day period. See F ED

. R. A PP

. P. 4(a)(4)(C).

Halick i's counsel claims that because he received notice of

the final judgment by mail, he thought the three-day mail service

provisions of F ED

. R. C IV

. P. 6(e) applied to enlarge the ten days

he otherwise would have from the entry of final judgment to file a

rule 59(e) motion. Apparently unaware that the plain language of

the rules, well-s ettled hornbook law, and every other circuit to

address the issue had rejected the applicability of rule 6(e) to

rule 59(e), t he attorney waited until the tenth day t o mail the

rule 59(e) motion, causing it to arrive at the district court two

days late.

Casino Rouge, in its opposition to the rule 59(e) motion,

objected to its untimeliness. Halicki moved for enlargement of

time for filing a notice of appeal under F ED

. R. A PP

. P. 4(a)(5)2 All other circuits to have addressed this issue have found that rule 6(e)

does not apply to rule 59(e) motions. S ee Parker v. Board of Pub. Utils.

,

77 F.3d 1289, 1291 (10th Cir. 1996) (holding the same); Adams v. Trustees of N.J.

Brewery Employees' Pension Trust Fund , 29 F.3d 863, 870 (3d Cir. 1994) (same);

Flint v. Howard , 464 F.2d 1084, 1087 (1st Cir. 1972) (per curiam) (on petition

(continued...)

3 because of “excusable neglect” in misconstruing rule 6(e); for, if

her rule 59(e) motion was untimely, the thirty-day notice of appeal

clock did not toll, and her time to appeal had expired. S ee

Gribble v. Harris

, 625 F.2d 1173, 1174 (5th Cir. Unit A 1980) (per

curiam); F ED

. R. A PP

. P. 4(a)(4). Halicki also argued that even if

the rule 59(e) motion was untimely, the court should construe it as

a F ED

. R. C I V

. P. 60(b) motion for relief from judgment. The

district court denied, and Halicki timely appealed, the denial of

her rule 59(e), rule 4(a)(5), and rule 60(b) motions.

II.

Rule 6(e), F ED

. R. C IV

. P., provides: “Whenever a party has the

right or is required to do some act or take some proceedings within

a prescribed period after the service of a notic e or other paper

upon the party and the notice or paper is served upon the party by

mail, 3 days shall be added to the prescribed period.” (Emphasis

added.) “Mere quotation of Rule 6(e) shows why it is inapplicable

to Rule 59(e) motions. The period for filing a Rule 59(e) motion

doe s not S S in the words of Rule 6(e) SS begin with 'service of a

notice .'” D errington-Bey v. District of Columbia Dep't of

Corrections

, 39 F.3d 1224, 1225 (D .C. Cir. 1994). 2 Rather, rule2 (...continued)

for rehearing); cf. Cavaliere v. Allstate Ins. Co.

, 996 F.2d 1111, 1113-14 (11th

Cir. 1993) (rejecting the applic ation of rule 6(e) to a motion filed under

rule 59(b)).

4 59(e) provides that “[a] motion to alter or amend the judgment

shall b e served not later than 10 days a fter entry of the

judgment .” (Emphasis added.)

“Rule 6(e) does not apply to time periods that begin with the

filing in court of a judgment or an order. Thus, Rule 6(e) does

not apply to the 10-day period that runs from entry of judgment for

moving to alter or amend judgment pursuant to Rule 59(e).” 1 J A MES

W. M OORE ET AL

., M OORE ' S F EDERAL P RACTICE § 6.05[3], at 6-35 (3d ed.

1998) (citations omitted). Under the plain language of the rules,

therefore, the district court correctly found that Halicki's rule

59(e) motion was untimely filed two days after the tenth day from

entry of judgment.

III.

Halicki argues that even if she misapplied rule 6(e), her

construction of the rules in this instance SS a n issue of first

impression in this circuit SS should constitute “excusable neglect”

under rule 4(a)(5). Thus, she argues, the district court should

have granted her an extension to file a notice of appeal on the

underlying summary judgment.

Rule 4(a)(5) provides: “The district court, upon a showing of

excusable neglect or good cause, may extend the time for filing a5

notice of appeal upon motion filed not later than 30 days after the

expiration of the time prescribed by this Rule 4(a).” Accordingly,

we face three issues: (1) what the correct standard is for the

evaluation of “excusable neglect”; (2) whether the court employed

t he correct standard in evaluating “excusable neglect”; and

(3) whether, if the court used the correct standard, it reached a

tenable result.

In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

Partnership

, 507 U.S. 380, 395-97 (1993), the C ourt interpreted

“excusable neglect” in the context of the bankruptcy rules. It

stated:

Because Congres s has provided no other guideposts for

determining what sorts of neglect will be co nsidered

“excus able,” we conclude that the determination is at

bottom an equitable one, t aking account all of the

relevant circumstances surrounding the party's omission.

These include

. . . the danger of prejudice to the [nonmoving party], the length of the delay and its potential

impact on judicial proceedings, the reason for the delay,

including whether it was within the reasonable control of

the movant, and whether the movant acted in good faith.

Id. at 395.

We have adopted the Pioneer standard of “excusable neglect”

for purposes of F ED

. R. A PP

. P. 4(b), which go verns c riminal

matters. See United States v. Clark , 51 F.3d 42, 43-44 (5th Cir.

1995). Like rule 4(a)(5), rule 4(b) provides that “[u]pon a

showing of excusable neglect, the district court may . . . extend

the time for filing a notice of appeal for a period not to exceed6

30 days from the expiration of the time otherwise prescribed by

this subdivision.”

In Clark , defense counsel, not unlike Halicki's attorney,

misconstrued the federal criminal rules and their applicability to

the amount of time the defendant had to file his notice of appeal.

See Clark

, 51 F.3d at 42-43. The district court found that our

caselaw interpreting F ED

. R. A PP

. P. 4 prohibited such conduct from

ever constituting “excusable neglect.” S ee id. at 43. On appeal,

we disagreed, holdin g that the intervening decision in P ioneer

abrogated our previous caselaw stringently construing “excusable

neglect” in rule 4(b). We noted that under the new, more liberal

Pioneer standard, the district court could SS in its discretion SS find

that Clark's attorney's misreading of the rule constituted

“excusable neglect.” See id. at 44.

We specifically declined, howev e r, to order the district

court, on remand, to find th at counsel's conduct m ust constitute

“excusable neglect.” See id. (“[W]e do not hold that it would be

an abuse of discretion for the district court, on remand, to find

no excusable neglect on these facts.”). Indeed, we noted, from

Pioneer

, that a misconstruction of the rules SS especially when their

language is plain SS will rarely satisfy the “excusable neglect”

standard. S ee Pioneer

, 507 U.S. at 392 (“[I]gnorance of the rules

[and] mistakes construing the rules do not usually constitute

'excusable' neglect.”); see also Clark , 51 F.3d at 44 (noting the7

same in the context of that case).

We first must determine whether the reasoning in C lark

applies, as well, to rule 4(a)(5) SS that is, to c ivil cases.

Although we could make distinctions between the civil and criminal

spheres, the argument for applying the Pioneer interpr etation to

the civil context is fairly conclusive.

First, both rule 4(a)(5) and rule 4(b) use “excusable neglect”

as the standard for an extension of the time for filing a notice of

appeal. We are mindful of the “basic canon of statutory

construction that identic al terms within an Act bear the same

meaning.” E state of Cowart v. Nicklos Drilling Co.

, 505 U.S. 469,

479 (1992) (citations omitted).

Second, the Pioneer Court's construction of “excusable

neglect” was apparently generally applicable, as the Court claimed

to be adopting “th e commonly accepted meaning of the phrase.”

Pioneer

, 507 U.S. at 391. For this reason, courts of appeals have

readily found the standard applicable to rule 4(a)(5), see, e.g.

,

Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 533 (4th

Cir. 1996), as well as to rule 4(b), see Clark , 51 F.3d at 43-44.

Finally, Pioneer was a civil bankruptcy proceeding, in which

the Court noted that the circuits “similarly have divided” over the

term of “excusable neglect” in the context of ru le 4(a)(5). S ee

Pioneer

, 507 U.S. at 387 n.3. We therefore read the Court's3 In extending Pioneer to rule 4(a )(5), we follow each of our sister

circui ts to have addressed the issue. S ee Advanced Estimating Sys., Inc. v.

Riney

, 77 F.3d 1322, 1323 (11th Cir. 1996) (per curiam); Thompson

, 76 F.3d at 533

(“While in Pioneer the Court interpreted the phrase 'excusable neglect' as used

in a rule of bankruptcy procedure, it is evident that the Court intended its

def inition of 'excusable neglect' to be equally applicable to Federal Rule of

Appellate Procedure 4(a)(5), as every appellate court to consider the

applicability of Pi oneer to Rule 4(a)(5) and Rule 4(b) (criminal appeals) has

concluded.”); F ink v. Union Cent. Life Ins. Co.

, 65 F.3d 722, 724 (8 th Cir.

1995); Reynolds v. Wagner

, 55 F.3d 1426, 1429 (9th Cir. 1995); Virella-Nieves v.

Briggs & Stratton Corp. , 53 F.3d 451, 454 n.3 (1st Cir. 1995); City of Chanute

v. Williams Natural Gas Co. , 31 F.3d 1041, 1046 (10th Cir. 1994); Weinstock v.

Cleary, Gottlieb, Steen & Hamilton , 16 F.3d 501, 503 (2d Cir. 1994).

8 opinion, by its own terms, to cover this issue. 3

Proceed ing under the P ioneer standard, we face the harder

question of how the district court mad e its “excusable neglect”

i nquiry. That is, we must decide whether it used the Pioneer

standard, or instead employed the older, more stringent metric in

making its “excusable neglect” determination. If we conclude that

the court used the Pioneer standard, we must then decide whether it

did so correctly.

Halicki does not appear to have proffered any standard of

“excusable neglect” to the district court. Instead, she argued

there, as here, that Pioneer and Clark hold that misconstruction of

procedural rules necessarily shoul d result in a finding of

“excusable neglect” where no prejudice results to the opposing

pa rty. The court correctly disagreed with this proposition, s ee

Pioneer

, 507 U.S. at 392, and without discussing its reasoning

further, denied the motion for extension of time to file notice of

appeal.4 Halicki argues that granting an extension w ould cause no prejudice to

Casino Rouge. Given this showing alone, however, the district court was

justified in finding that counsel's misconstruction of the rules was not

“excusa ble” neglect: “The word 'excusable' would be read out of the rule if

inexcusable neglect were transmuted into excusable neglect by a mere absence of

harm.” Prizevoits v. Indiana Bell Tel. Co. , 76 F.3d 132, 134 (7th Cir. 1996).

5 See Advanced Estimating Sys., Inc. v. Riney

, 130 F.3d 996, 998 (11th Cir.

1997) (mistaken interpretation or ignorance of F ED

. R. A PP

. P. 4(a)(4)(F));

Prizevoits v. Indiana Bell Tel. Co.

, 76 F.3d 132, 134 (7th Cir. 1996) (mistaken

interpretation or ignorance of F ED

. R. C IV

. P. 6(b)); Kyle v. Campbell Soup Co.

, 28 F.3d 928, 931-32 (9th Cir.) (mistaken interpretation of F ED

. R. C IV

. P. 6(e)),

cert. denied

, 513 U.S. 867 (1994); W einstock v. Cleary, Gottlieb, Steen &

Hamilton

, 16 F.3d 501, 503 (2d Cir. 1994) (mistaken interpre tation of F E D

. R.

A PP

. P. 4(a)(4)).

9 It appears, however, that the court considered al l evidence

Halicki proffered in support of her claim and made an equitable

determination that an extension was unwarranted. Under P ioneer and

Clark , no more is required. 4

Turning to the district court’s ap plication of the P ioneer

standard to the facts of this case, we detect no error. The nature

of Halicki’s mistake weighs heavily against a finding of excusable

neglect. 5

Although in Clark we left open the possibility that some

misinterpretation s of the federal rules may qualify as excusable

neglect, such is the rare case indeed. Where, as here, the rule at

is sue is unambiguous, a district court’s determination that the

neglect was inexcusable is virtually unassailab le. Were it

otherwise, “almost every appellant’s lawyer would plead his own

inability to understand the law when he fails to comply with a

deadline.” R iney

, 130 F.3d at 998. Accordingly, we cannot say

that the court abused its discretion in denying Halicki's motion to10

extend the notice of appeal clock under rule 4(a)(5).

IV.

The only issue before us, therefore, is whether the district

court properly disposed of Halicki's mo tion under rule 60(b) for

relief fr om judgment because of her newly “discovered” (or

proffered) evid ence and because of the district court's alleged

mistake of law at summary judgment. “A 'timely' appeal from a

'ruling on a Rule 60(b) motion' may be taken under F ED

. R. A PP

.

P. 4(a)(5), although the court of appeals 'may review the ruling

only for abuse of discretion' and although the appeal 'does not

bring up the underlying judgment for review. '” D errington-Bey

,

39 F.3d at 1226 (quoting Browder v. Director, Dep't of Corrections

,

434 U.S. 257, 263 n.7 (1978)).

“[T]he 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

, 78 F.3d 983, 995 (5th Cir. 1996) (en banc). “Furthermore,

we have repeatedly held that in order to prevail on a motion under

F ED

. R. C IV

. P

. 60(b)(2) based upon newly presented evidence, the

movant must demonstrate among o ther things that it exercised due

diligence in obtaining the information.” W illiams v. Chater

,

87 F.3d 702, 705 n.2 (5th Cir. 1996) (citing Government Fin. Servs.

One Ltd. Partnership v. Peyton Place, Inc. , 62 F.3d 767, 771 (5th6 S ee Damiano v. FDIC

, 104 F.3d 328, 332 n.4 (11th Cir. 1997) (noting the

same); Edwards

, 78 F.3d at 995 (s ame); Helm v. Resolution Trust Corp. , 43 F.3d 1163,

1166-67 (7th Cir. 1995) (same).

11 Cir. 1995); New Hampshire Ins. Co. v. Martech USA, Inc. , 993 F.2d

1195, 1199 (5th Cir. 1993)).

Casino Rouge initially opposed Halicki's rule 60(b) motion

because it was originally filed as an untimely rule 59(e) motion.

Casino Rouge argues that Halicki was required to file a separate

rule 60(b) motion for the lower court to consider it as such; that

is, Casino Rouge argues that Halicki could not use her untimely

rule 59(e) motion as a motion under rule 60(b).

Casino Rouge's argument in this regard cuts against the grain

of the liberal Federal Rules of Civil Procedure. “As with untimely

Rule 52(b) motions, and untimely Rule 59(a) 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 the Rule 59(e) motion would also support Rule 60(b)

relief.” 12 M O ORE ET AL

., supra

, § 60.03[4], at 60-24. 6 Here, the

grounds Halicki asserted in her rule 59(e) motion SS new evidence and

mistake SS

would also support a rule 60(b) motion.

Ha licki contends that having properly considered the rule

60(b) motion, the district court was re quired to pay special

solicitude to her claim because she never had an “examination of

the full merits of the cause,” which, in her view, means a trial.

Indeed, “where denial of relief [under rule 60(b)] precludes12

examination of the full merits of the cause, even a slight abuse of

discretion may justify reversal.” Seven Elves, Inc. v. Eskenazi

,

635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981) (citation omitted).

Our caselaw allows for more leniency i n opening up d efault

judgments, no t those in which the court has had a chance to

evaluate the merits. S ee, e.g.

, Harrell v. DCS Equip. Leasing

Corp.

, 951 F.2d 1453, 1459 (5th Cir. 1991); see also 12 M OORE ET AL

.,

supra , § 60.22[3][a], at 60-69 to 60-70. “Summary judgment is a

judgment on the merits; it has the same effect as if the case had

been tried by the party against whom judgment is rendered and

decided against him.” Daigle v. Opelousas Health Care, Inc.

,

774 F.2d 1344, 1348 (5th Cir. 1985). Accordingly, we reject

Halicki's invitation to conduct a more searching review and instead

give our usual deferenc e to the district court's denial of

rule 60(b) relief. See Crutcher v. Aetna Life Ins. Co. , 746 F.2d

1076, 1082 (5th Cir. 1984) (reviewing a denial of a rule 60(b)

motion for abuse of discretion).

To the extent that the “newly discovered” evidence is grounds

for Halicki's rule 60(b) motion, Halicki has made no showing that

the evidence in the newly proffered affidavits was “newly

discovered,” in that it was not obtainable prior to summary

judgment had she exercised “due diligence.” Indeed, all but one of

the s upplemental affidavits proffered with the rule 60(b) motion

were from the same witnesses who had offered affidavits before7 A rule 60(b) challenge on this ground is usually thought to encompass “an

obvious error of law.” Hill v. McDermott, Inc. , 827 F.2d 1040, 1043 (5th Cir.

1987). The alleged error in this case is not such a mistake.

8 See, e.g., Travelers Indem. Co. v. United States

, 728 F.2d 699, 703 (5th

Cir. 1984) (“Although Travelers uses the war-weary rhetorical epithet of

‘manifest’ or ‘beyond question’ in depicting the claimed error, the briefs

demonstrate at best only that the question is arguable.”).

9 See Pryor v. United States Postal Serv.

, 769 F.2d 281, 288-89 (5th Cir.

1985) (notin g that “[w]ere this Court to make an exception to finality of

judgment each ti me a hardship was visited upon the unfortunate client of a

negligent or inadvertent attorney, even though the result be disproportionate to

the deficiency, courts would be unable to ever adequately redraw that line again,

and meaningful finality of judgment would largely disappear”).

13 summary judgment. The refusal to grant rule 60(b) relief on this

paltry showing of “newly discovered” evidence was certainly not an

abuse of the court's equitable powers to reopen the judgment.

Halicki's second theor y for rule 60(b) relief SS that the

district court appl ied the wrong legal standard at summary

judgment SS is not one that readily fits within one of the enumerated

grounds for relief outlined in the rule. Although it arguably

could fall within the scope of rule 60(b)(1), m istake, 7 or

rule 60(b)(6), the “catch-all” provision, it should not, in this

case, because the ground SS the district court's error of law SS appears

to be no more than a mask for Halicki's forfeited appeal of the

court's summary judgment ruling. 8

“Rule 60(b) is not a substitute for a timely appeal. Courts

should not grant relief when the moving party has not been diligent

in protecti ng its own rights by filing an appeal from an adverse

judgment.” 12 M O ORE ET AL

., supra

, § 60.22[2], at 60-67

. 9 Even

assuming arguendo that the district court made an error of law at14

summary judgment, it had the discretion to deny Halicki's

rule 60(b) motion to prevent her end-run of the normal appellate

process for correcting legal error.

AFFIRMED.