UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-2046

SCOTT CHRISTIAN WADLEY,

Plaintiff - Appellant,

v.

EQUIFAX INFORMATION SERVICES, LLC,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern

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

Judge. (1:05-cv-00467-GBL)

Submitted: July 29, 2008 Decided: October 9, 2008

Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Affirmed by unpublished per curiam opinion.

Carl Lowell Crews, C. LOWELL CREWS, ATTORNEY AT LAW, PLLC,

Arlington, Virginia, for Appellant. Barry Goheen, J. Anthony Love,

KING & SPALDING, LLP, Atlanta, Georgia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1Not only does Wadley concede that he failed to timely and

properly notice an appeal as to Equifax, but he also agreed to

dismiss Equifax with prejudice from a related appeal, when Equifax

inadvertently was included as a party in that appeal, based in part

on his reluctance to pay the additional fees and costs associated

with having Equifax included in that prior appeal. 

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PER CURIAM:

Scott Christian Wadley appeals the district court’s

denial of his Fed. R. Civ. P. 60(b)(4), (6) motion, wherein he

sought relief from the district court’s adverse grant of summary

judgment in favor of Equifax Information Services, LLC (“Equifax”)

relative to claims he brought under the Fair Credit Reporting Act,

15 U.S.C. §§ 1681-1681x. For the reasons stated below, we affirm.

It is well-settled that “a Rule 60(b) motion seeking

relief from a final judgment is not a substitute for a timely and

proper appeal.” Dowell v. State Farm Fire & Cas. Auto. Ins. Co.,

993 F.2d 46, 48 (4th Cir. 1993) (citing Ackermann v. United States,

340 U.S. 193, 198 (1950)). Thus, in cases where a petitioner makes

a “considered choice” not to appeal, he cannot be relieved of that

choice merely because hindsight demonstrates that his decision to

forego a timely appeal was probably wrong in light of subsequent

rulings by the court. See Ackermann, 340 U.S. at 198. There is no

dispute here that Wadley failed to appeal the district court’s

grant of summary judgment on which his Rule 60(b) motion is based.1

As the Supreme Court stated in Ackermann, “By no stretch of

imagination can the voluntary, deliberate, free, untrammeled choice
2

While Wadley argues on appeal that he filed promptly after we

issued our remand in Wadley v. Experian Info. Solutions, Inc., No.

05-2054 (4th Cir. July 17, 2007) (per curiam) (unpublished), the

related appeal, our actions in that case have no bearing on the

summary judgment order against Equifax because Equifax, as Wadley

himself concedes, was never a proper party to that appeal.

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of [a Petitioner] not to appeal” constitute a sufficient basis for

Rule 60(b) relief. Id. at 200; see also Dowell, 993 F.2d at 47

(affirming denial of Rule 60(b) motion where movant “knowingly and

voluntarily chose not to appeal the district court’s [underlying]

decision”). 

Moreover, a motion under Rule 60(b) must be filed within

“a reasonable time.” Fed. R. Civ. P. 60(c)(1); McLawhorn v. John

W. Daniel & Co., 924 F.2d 535, 538 (4th Cir. 1991) (finding Rule

60(b) motion untimely when delay in filing was three to four

months). In this case, Wadley waited almost two years after the

district court’s adverse grant of summary judgment in favor of

Equifax to file his Rule 60(b) motion.2 That he chose to wait for

the litigation in this court as to the related appeal to become

final so he unnecessarily would not have to pay additional fees and

costs for an appeal as to Equifax is not a sufficient justification

supporting the relief he now seeks. Under these circumstances, we

find this passage of time was not reasonable.

Pursuant to the standards articulated by this court

relative to considering the merits of a Rule 60(b)(4) motion, a

judgment is “void” only where “the court that rendered it lacked
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jurisdiction of the subject matter, or of the parties, or if it

acted in a manner inconsistent with due process of law.” Schwartz

v. United States, 976 F.2d 213, 217 (4th Cir. 1992). Wadley makes

no argument, nor is there any to be made, that the district court

lacked subject matter or personal jurisdiction when it granted

Equifax’s summary judgment motion. Nor did the district court act

in a manner inconsistent with due process. “A judgment is not

‘void’ under Rule 60(b)(4) merely because it is erroneous.” Cromer

v. Kraft Foods No. Am., 390 F.3d 812, 817 (4th Cir. 2004). Hence

this court’s subsequent action in vacating and remanding the

district court’s grant of summary judgment in the related appeal,

which rested upon the same analysis as its grant of summary

judgment in favor of Equifax, is not, contrary to Wadley’s

contention, a legitimate basis for relief pursuant to Rule

60(b)(4).

Neither has Wadley established “extraordinary

circumstances” supporting entitlement to relief pursuant to Rule

60(b)(6), because “strategic decisions made during the course of

litigation provide no basis for relief under 60(b)(6).” See

Schwartz, 976 F.2d at 218. Nor was the change in the decisional

law on which the district court based its decision to grant

Equifax’s motion for summary judgment, which was brought about by

our decision to vacate and remand the grant of summary judgment as

to the party in the related appeal, sufficient to establish
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“extraordinary circumstances” under Rule 60(b)(6). See Dowell, 993

F.2d at 48 (affirming denial of Rule 60(b)(6) motion where basis

for relief was subsequent change in law).

Finally, Wadley’s Rule 60(b) motion is a clear attempt to

require the district court to revisit its previous decision

dismissing Equifax from the underlying litigation, based upon this

court’s subsequent decision to vacate and remand the district

court’s decision granting summary judgment in the related case.

This he simply cannot do. See In re Burnley, 988 F.2d 1, 3 (4th

Cir. 1992). Wadley may not use Rule 60(b) as a vehicle to excuse

his failure to seek review of the final judgment granted to Equifax

almost two years earlier and from which he chose not to take an

appeal. 

The district court did not err in denying Wadley’s Rule

60(b) motion. Accordingly, we affirm the district court’s order.

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