UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-1974

MICHAEL J. HALE, d/b/a Data Base Technologies, 

 Plaintiff - Appellant, 

 v. 

BELTON ASSOCIATES, INCORPORATED, 

 Defendant - Appellee. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, District 

Judge. (1:06-cv-00099-GBL) 

Submitted: December 17, 2008 Decided: January 9, 2009 

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

John P. Forest, II, STAHL, FOREST & ZELLOE, P.C., Fairfax, 

Virginia, for Appellant. Aleksander Lamvol, SHEPPARD, MULLIN, 

RICHTER & HAMPTON, LLP, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Michael Hale appeals the district court’s order 

denying relief on his motion filed pursuant to Fed. R. Civ. P. 

60(a), (b). Finding no abuse of discretion, we affirm. 

 Final judgment in this breach of contract case was 

entered on July 26, 2006. Hale did not appeal. He filed his 

Rule 60 motion on July 23, 2007--almost one year later. In the 

motion, Hale contended that the district court had failed to 

rule on his claim that he was not given reasonable notice prior 

to termination of an employment contract. At the hearing on 

Hale’s motion, the district court inquired why Hale had not 

appealed following entry of final judgment. Hale’s attorney 

replied, “[W]e honestly just lost track of that.” 

 Because the claimed error was not of the sort 

contemplated by Rule 60(a), see In re: Walter, 282 F.3d 434, 

440-41 (6th Cir. 2002), Hale’s motion more appropriately falls 

under Rule 60(b). To support a motion under Rule 60(b), a 

movant must show “timeliness, a meritorious defense, a lack of 

unfair prejudice to the opposing party, and exceptional 

circumstances.” Dowell v. State Farm Fire & Cas. Auto. Ins. 

Co., 993 F.2d 46, 48 (4th Cir. 1993) (internal quotation marks 

omitted). 

 We review the denial of a Rule 60(b) motion for abuse 

of discretion. MLC Auto. v. Town of S. Pines, 532 F.3d 269, 277 

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(4th Cir. 2008). We do “not review the merits of the underlying 

order, [but rather] only review the denial of the motion with 

respect to the grounds set forth in Rule 60(b).” Id. It is 

well established that “a Rule 60(b) motion seeking relief from a 

final judgment is not a substitute for a timely and proper 

appeal.” Dowell, 993 F.2d at 48. Thus, if a Rule 60(b) 

movant’s failure to appeal is the result of “inexcusable 

negligence” or “a considered choice” not to appeal, relief under 

the Rule is unavailable. See Ackermann v. United States, 340 

U.S. 193, 198, 202 (1950). 

 Here, there was no abuse of discretion. Under the 

cited authorities, Hale’s negligent failure to note a timely 

appeal from the district court’s final order precluded relief 

under Rule 60(b). This case simply does not present exceptional 

circumstances that would entitle Hale to relief. 

 Accordingly, we affirm. The request for sanctions 

under Fed. R. App. P. 38 is denied. We dispense with oral 

argument because the facts and legal contentions are adequately 

presented in the materials before the court and argument would 

not aid the decisional process. 

AFFIRMED