UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1431

WILLIE J. BENNETT,

Plaintiff - Appellant,

versus

ANTHONY J. PRINCIPI, Secretary Department of

Veterans Affairs Agency,

Defendant - Appellee.

Appeal from the United States District Court for the District of

South Carolina, at Columbia. Joseph R. McCrorey, Magistrate Judge.

(3:03-cv-03809-JRM)

Submitted: June 18, 2007 Decided: July 11, 2007

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam

opinion.

Willie J. Bennett, Appellant Pro Se. Terri Hearn Bailey, OFFICE OF

THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Willie J. Bennett sued his former employer, Anthony J.

Principi, Secretary of the Department of Veterans Affairs, pursuant

to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to

2000e-17 (2000), on December 3, 2003, alleging he was subjected to

illegal workplace discrimination. He seeks to appeal the district

court’s order granting summary judgment to the Secretary and a

subsequent order denying Bennett’s several post judgment motions.

We dismiss in part and affirm in part.

Parties in a civil action are accorded thirty days after

the entry of the district court’s final judgment or order to note

an appeal, Fed. R. App. P. 4(a)(1)(A), unless the district court

extends the appeal period under Fed. R. App. P. 4(a)(5) or reopens

the appeal period under Fed. R. App. P. 4(a)(6). This appeal

period is “mandatory and jurisdictional.” Browder v. Director,

Dep’t of Corr., 434 U.S. 257, 264 (1978). 

Bennett did not note an appeal from the district court’s

September 2005 order awarding summary judgment to the Secretary

until April 2006. The thirty-day appeal period was not extended or

reopened. Nor did Bennett’s post-judgment motions for a new trial

and for reconsideration toll the time within which Bennett could

timely appeal from the district court’s judgment. Because these

motions were not filed within ten days of entry of judgment, as

required by Fed. R. Civ. P. 59(b), they are construed as arising
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under Rule 60(b), cf., In re Burnley, 988 F.2d 1,3 (4th Cir. 1992),

and thus do not allow for review of the merits of the underlying

judgment. Browder v. Director, 434 U.S. 257, 263 n.7 (1978).

Accordingly, because Bennett failed to note a timely appeal from

the September 2005 order, this court lacks jurisdiction to review

it. We therefore dismiss the appeal as untimely as to that order.

Bennett’s notice of appeal is timely, however, as to the

district court’s March 2006 order denying his several post-judgment

motions. Bennett’s informal brief challenges only the denial of

his motion to certify a class action. We have reviewed the record

and find no reversible error in the denial of that motion.

Accordingly, we affirm for the reasons stated by the district

court. Bennett v. Principi, No. 3:03-cv-03809-JRM (D.S.C. Mar. 7,

2006). Further, we deny the motions to join as a member of a class

action submitted by Theron Foster and Patricia Murray. 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.

DISMISSED IN PART;

AFFIRMED IN PART