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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TERRY L. SMITH, SR., §

§

Plaintiff, §

§ 

v. § Civil Action No. 3:93-CV-1509-D (BH)

§

U.S. POSTAL SERVICE, §

§

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS

Pursuant to the District Court’s Orders of Reference, filed December 29, 2006, and February

5, 2007, this matter has been referred to the undersigned United States Magistrate Judge for hearing,

if necessary, and for recommendation in accordance with 28 U.S.C. § 636(b)(1)(B). Before the

Court are the following pleadings:

(1) Plaintiff’s Motion to Revisit, Reverse, or Relief (“Mot. Revisit”), filed June 26, 2006;

(2) Plaintiff’s Brief in Support of Motion to Revisit, Reverse, or Relief (“Mot. Br.”), 

filed July 21, 2006; and

(3) Plaintiff’s Motions for Reinstatement and Relief (“Mot. Reinst.”), filed 

February 1, 2007. 

Based on the pleadings, evidence, and applicable law, the Court hereby recommends that Plaintiff’s

motions be DENIED.

I. BACKGROUND

Mr. Terry L. Smith, Sr. (“Plaintiff”) was employed by the United States Postal Service

(“Defendant”) as a custodian until his dismissal on October 9, 1992, for absence without leave and

failure to perform the duties of his position. (Mot. Reinst. at 29.) Plaintiff appealed the dismissal

 

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Although filed separately, the two motions raise identical arguments. 

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to the Merit Systems Protection Board, which affirmed Plaintiff’s discharge on February 11, 1993.

Id. Plaintiff then filed suit in the United States District Court for the Northern District of Texas

seeking review of the Board’s decision; therein, Defendant alleged discrimination on the basis of

hand and eye injuries he allegedly suffered during his service in the United States Army. (Id. at 81;

see Mot. Revisit at 2.) On February 15, 1995, the court granted Defendant’s Rule 12(b)(6) motion

to dismiss because Plaintiff improperly named the Postal Service and not the Postmaster General

as defendant. (Mot. Reinst. at 83.) The court entered judgment on February 16, 1995.

Plaintiff filed the instant actions on June 26, 2006, and February 1, 2007.1

 Plaintiff argues

that newly discovered documents show discrepancies between some of his time sheets and the

evidence presented against him to justify his dismissal during his appeal before the Merit Systems

Protection Board. Specifically, Plaintiff alleges that not all of the dates on which he was found to

be absent without leave were properly signed by his supervisor and that some of the documents

presented to the Board were fraudulent. (See Mot. Revisit at 2-5.) Plaintiff also argues that the

Social Security Administration’s December 10, 1997 finding that Plaintiff has suffered from severe

psychological and personality disorders since May 26, 1992, (see Mot. Reinst. at 15-18), prove that

he was physically disabled and thus discriminated against when Defendant dismissed him on

October 9, 1992. (Mot. Br. at 2.) As a result of these alleged newly discovered documents and his

belief that Defendants committed fraud, Plaintiff requests that the court revisit its February 16, 1995

judgment.

II. ANALYSIS

Rule 60(b) of the Federal Rules of Civil Procedure provides for relief from a judgment or

 

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To the extent that Plaintiff requests relief to alter or amend judgment under Rule 59(e), the Court construes

such a motion to be one filed pursuant to Rule 60(b). Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 470 (5th

Cir. 1998) (Rule 59(e) motions made more than ten days after entry of judgment are properly treated as Rule 60(b)

motions.)

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an order. It states:

[o]n motion and upon such terms as are just, the court may relieve a party or a

party’s legal representative from a final judgment, order, or proceeding for the

following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)

newly discovered evidence which by due diligence could not have been discovered

in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an

adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released,

or discharged, or a prior judgment upon which it is based has been reversed or

otherwise vacated, or it is no longer equitable that the judgment should have

prospective application; or (6) any other reason justifying relief from the operation

of the judgment. The motion shall be made within a reasonable time, and for reasons

(1), (2), and (3) not more than one year after the judgment, order, or proceeding was

entered or taken. 

FED. R. CIV. P. 60(b).2

 Although Plaintiff’s motions do not specify the applicable clauses, clauses

(2) and (3) appear to pertain to his allegations of newly discovered evidence and fraud, respectively.

Plaintiff’s motion for relief from judgment is time barred. FED.R.CIV. P. 60(b). Rule 60(b)

provides that the motion for relief from judgment shall be made within a “reasonable” time, and a

motion made on the basis of newly discovered evidence or fraud shall be made not more than one

year after entry of judgment. FED. R. CIV. P. 60(b). Rule 60(b) reflects “a strong policy favoring

an end to litigation by severely restricting the relief available after the one year limit has run.”

Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1977). The time runs from the date the

district court entered final judgment. Gulf Coast Building & Supply Co. v. Int’l. Bhd. of Electrical

Workers, Local 480, AFL-CIO, 460 F.2d 105, 108 (5th Cir.1972). Since the district court entered

its judgment on February 16, 1995, and Plaintiff did not bring the instant action until June 26, 2006,

more than eleven years later, Plaintiff’s motion is untimely pursuant to Rule 60(b).

 

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Clause (6) provides an alternative grounds for relief from judgment as a catch-all provision

of Rule 60(b). Unlike clauses (1), (2), and (3), motions for relief under clause (6) must be made

within a “reasonable” time and are not limited to the more stringent one-year period. However,

relief under clause (6) is unavailable if the motion is premised on one of the grounds for relief

enumerated in clauses (1) through (5). Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,

863 (1988); Kerwit Med. Prods., Inc. v. N & H Instruments, Inc., 616 F.2d 833, 836 n. 8 (5th Cir.

1980). Since Plaintiff’s motion for relief comes within the coverage of clauses (2) and (3), relief

under clause (6) is unavailable. See Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th

Cir. 1989). Furthermore, even if relief under clause (6) was not barred by coverage under the other

clauses of Rule 60(b), Plaintiff’s motion was not made within a “reasonable” time because it was

filed more than eleven years after entry of judgment. First Republic Bank Fort Worth v. Norglass,

Inc., 958 F.2d 117, 121 (5th Cir. 1992) (affirming the district court’s determination that a two year

delay in filing a Rule 60(b) motion is beyond the bounds of reasonableness).

Finally, even if Plaintiff were not time barred from filing his Rule 60(b) motion, he has failed

to show that the grounds for his motion were not discoverable through due diligence, or that the

alleged newly discovered evidence or fraud would have produced a different result. Halicki v. La.

Casino Cruises, Inc., 151 F.3d 465, 471 (5th Cir. 1998) (Plaintiff made no showing that the evidence

was newly discovered in that it was not obtainable prior to summary judgment had she exercised due

diligence); Johnson Waste Materials v. Marshall, 611 F.2d 593, 597 (5th Cir. 1980) (To prevail

under Rule 60(b)(2), the movant “must show that the evidence was discovered following the trial,

that he used due diligence to discover the evidence at the time of the trial, that the evidence is not

merely cumulative or impeaching, that it is material, and that a new trial in which the evidence was

 

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introduced would probably produce a different result); Ag Pro, Inc. v. Sakraida, 512 F.2d 141, 143

(5th Cir. 1975), rev’d on other grounds, 425 U.S. 273 (1976) (motion under Rule 60(b)(2) granted

only if the evidence is such that a new trial would probably produce a new result).

III. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Revisit, Reverse, or Relief and Motions for

Reinstatement and Relief should be DENIED.

SO RECOMMENDED on this 6th day of March, 2007.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object

to these findings, conclusions and recommendation must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify those

findings, conclusions or recommendation to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. A party’s failure to file such written

objections to these proposed findings, conclusions and recommendation shall bar that party from a

de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales

v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections

to the proposed findings, conclusions and recommendation within ten (10) days after being served

with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions

of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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