NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-2228

___________

RORY M. WALSH,

 Appellant

v.

UNITED STATES OF AMERICA; THE DEPARTMENT OF THE NAVY; 

MAJ. GEN. JERRY D. HUMBLE; LT. GEN. MICHAEL J. BYRON; 

MAJ. GEN. THOMAS F. GHORMLEY; GENERAL JAMES L. JONES, JR.; 

COLONEL RICHARD M. WENZELL; SPECIAL AGENT WEST; 

COLONEL M. W. MCERLEAN; LT. COL. PAUL D. ROY

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-05-cv-00818)

District Judge Christopher C. Conner

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 1, 2016

Before: FISHER, SHWARTZ and COWEN, Circuit Judges

(Opinion filed: February 1, 2016)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Rory M. Walsh, proceeding pro se, appeals from the District Court’s order 

denying his motion to reopen his case pursuant to Federal Rule of Civil Procedure 

60(b)(6). For the following reasons, we will affirm.

Walsh, a former Marine Corps officer, filed a civil action in 2005 against the 

United States, the Department of the Navy, and several current and former military 

officers. He alleged that some of the named defendants interfered with his personal mail, 

attempted to murder him by poisoning him with arsenic, and attempted to frame him for 

espionage. He also alleged that General Jones ordered Naval Intelligence agents to break 

into his home, resulting in the theft of various items. Walsh was later permitted to amend 

his complaint to include additional allegations regarding break-ins and surveillance by 

General Jones occurring between October 2005 and July 2007. The District Court 

dismissed all of Walsh’s claims except those against General Jones regarding the breakins. After discovery, the District Court granted summary judgment in favor of General 

Jones, noting that the record was devoid of any evidence of his direct or indirect 

involvement in the conduct alleged by Walsh. We affirmed. Walsh v. United States, 328 

F. App’x 806, 810 (3d Cir.), cert. denied, 558 U.S. 996 (2009).

In 2013, Walsh filed a motion to reopen the case on the basis of newly discovered 

evidence and fraud upon the court, pursuant to Rule 60(b)(2) and (3). The District Court 

denied the motion, concluding that it was untimely and meritless. On appeal, Walsh 

submitted supplemental evidence which he claimed showed that General Jones stalked 

him and his sons on May 17, 2014. We affirmed the District Court’s disposition of the 
3

Rule 60(b) motion, noting that Walsh’s supplemental evidence was not material because 

the alleged stalking in 2014 did not prove that General Jones was involved in the 2005-

2007 break-ins that were the subject of the case Walsh sought to reopen. Walsh v. United 

States, 571 F. App’x 109, 111 & n.4 (3d Cir. 2014).

Several months later, Walsh filed a second motion to reopen. This time he based 

his motion on the alleged stalking incident that he had raised as supplemental evidence in 

his prior appeal, and he sought to proceed under Rule 60(b)(6).1 The District Court 

denied the motion as untimely, pointing out that it had been filed more than six years 

after the entry of final judgment. The court also concluded that the motion lacked merit, 

noting that Walsh presented no new evidence linking General Jones to the conduct 

alleged in the complaint and that this Court had already deemed the stalking incident to 

be immaterial to Walsh’s original claims. This appeal followed.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the denial of a 

Rule 60(b)(6) motion for an abuse of discretion. Cox v. Horn, 757 F.3d 113, 118 (3d Cir. 

2014), cert. denied, 135 S. Ct. 1548 (2015). “A district court abuses its discretion when it 

bases its decision upon a clearly erroneous finding of fact, an erroneous conclusion of 

law, or an improper application of law to fact.” Id. (citing Morris v. Horn, 187 F.3d 333, 

341 (3d Cir. 1999)).

 

1 Walsh also filed a lawsuit based on the incident, which was dismissed. His appeal 

from that decision is pending at C.A. No. 15-1618.
4

At the outset, we note that Walsh raises numerous issues on appeal, very few of 

which appear to challenge the denial of his Rule 60(b)(6) motion.2 Appellant’s Br. at 39-

43. Walsh did not raise the other issues in the District Court during the Rule 60(b)(6) 

proceedings. In general, the “failure to raise an issue in the District Court results in its 

waiver on appeal.” Webb v. City of Phila., 562 F.3d 256, 263 (3d Cir. 2009) (quoting 

Huber v. Taylor, 469 F.3d 67, 74 (3d Cir. 2006). Furthermore, many of the issues Walsh 

raises on appeal concern rulings related to his original civil action, but “an appeal from 

denial of Rule 60(b) relief does not bring up the underlying judgment for review.” 

Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 263 n.7 (1978). In sum, the only matter 

properly before us is the denial of Walsh’s Rule 60(b)(6) motion.

We agree with the District Court that Walsh’s motion was untimely. Motions 

brought under Rule 60(b)(6) “must be made within a reasonable time.” Fed. R. Civ. P. 

60(c)(1). Walsh filed his motion more than six years after the District Court granted 

summary judgment in favor of General Jones, which is not within a reasonable time. 

See, e.g., Moolenaar v. Gov’t of the V.I., 822 F.2d 1342, 1348 (3d Cir. 1987) (Rule 

60(b)(6) motion filed almost two years after judgment was not made within a 

reasonable time). Although Walsh filed his motion within months of the alleged stalking 

incident, that does not render it timely. The basis for his motion was more suited for the 

new evidence provision of Rule 60(b)(2), but such motions must be filed within one year 

 

2 Walsh’s motion to expand the record is denied to the extent he seeks consideration 

of material that was not part of the record in the District Court. See Burton v. Teleflex 
5

of the entry of judgment. Fed. R. Civ. P. 60(c)(1). Walsh’s motion, filed more than six 

years after judgment, was too late for such relief. He cannot avoid that time bar by 

resorting to Rule 60(b)(6). See Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir. 1975) 

(“Rule 60(b)(6) is not intended as a means by which the time limitations of 60(b)(1)-(3) 

maybe circumvented”); Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006) (“if the 

asserted ground for relief falls within one of the enumerated grounds . . . subject to the 

one-year time limit of Rule 60(b), relief under the residual provision of Rule 60(b)(6) is 

not available”).

Walsh’s argument that any time limitation for his motion was “wiped out” by the 

continuing violation doctrine has no force here. He primarily relies on Nat’l Railroad

Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Mandel v. M&Q Packaging Corp., 706 

F.3d 157 (3d Cir. 2013); and O’Connor v. City of Newark, 440 F.3d 125 (3d Cir. 2006). 

However, those cases – and the continuing violation doctrine – concern the limitations 

period for bringing a hostile work environment claim under Title VII of the Civil Rights 

Act of 1964. See, e.g., Mandel, 706 F.3d at 165-66 (explaining the doctrine). Walsh 

cites no authority for applying this doctrine in the Rule 60(b)(6) context, and we are 

aware of none. In sum, we perceive no abuse of discretion in the District Court’s denial 

of Walsh’s motion as untimely.

Nor did the court abuse its discretion in denying the motion as meritless. To be 

granted relief under Rule 60(b)(6), a movant must show “extraordinary circumstances 

 

Inc., 707 F.3d 417, 435-36 (3d Cir. 2013). 
6

where, without such relief, an extreme and unexpected hardship would occur.” Cox, 757 

F.3d at 115 (quoting Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993)). Walsh 

based his motion on the May 2014 incident, which we had previously deemed to be 

immaterial to the original allegations and insufficient to change the outcome in the case. 

See Walsh, 571 F. App’x at 111. It follows that this same evidence cannot constitute 

extraordinary circumstances warranting Rule 60(b)(6) relief.3 Moreover, Walsh may not 

use his Rule 60(b)(6) motion as a mechanism to seek review of our prior decision. See

Reform Party v. Allegheny Cty. Dep’t of Elections, 174 F.3d 305, 312 (3d Cir. 1999) (en 

banc).

Accordingly, we will affirm the order of the District Court.

 

3 On appeal, Walsh has mistakenly relied on the standards for motions for 

reconsideration and summary judgment. See Appellant’s Br. at 42, Reply Br. at 1. In 

particular, he asserts that he is entitled to prevail because Appellees offered “no opposing 

evidence” on appeal. Reply Br. at 1. As the moving party in the District Court and the 

Appellant here, Walsh had the burden to demonstrate that he warranted Rule 60(b)(6) 

relief and that the District Court erred in denying it. See, e.g., Cox, 757 F.3d at 122. As 

we have explained, he has failed to do so.