IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-20924

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ELROY WILLIAMS,

Plaintiff-Appellant,

versus

SHIRLEY S. CHATER, Commissioner

of Social Security,

Defendant-Appellee.

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Appeal from the United States District Court for the

Southern District of Texas

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June 28, 1996

Before GARWOOD, SMITH and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Elroy Williams (Williams) appeals the

district court’s dismissal of his suit challenging the denial by

defendant-appellee Commissioner of Social Security of Williams’

claim for Social Security disability benefits. The only argument

made in Williams’ brief is a complaint that the district court

erred by failing to consider allegedly “new and material” evidence

submitted for the first time in support of Williams’ motion under

Fed. R. Civ. P. 60(b) seeking to set aside the district court’s

earlier judgment dismissing his suit. Williams gave timely notice

of appeal from that earlier judgment, but filed no notice of appeal

from the court’s order denying his Rule 60(b) motion. We
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accordingly have no jurisdiction to consider the denial of the

60(b) motion, and although the underlying judgment is properly

before us, Williams has presented no basis for reversal. We

accordingly affirm.

Facts and Proceedings Below

In 1988, Williams filed applications for Title II disability

insurance and Title XVI Supplemental Security Income based upon

back injuries that he had sustained. Both the state agency and the

Social Security Administration (SSA) denied Williams’ claims. On

January 6, 1989, Williams received a hearing before an

administrative law judge (ALJ)regarding his claims. The ALJ issued

a decision on September 21, 1989, finding that the claims had

properly been denied as Williams was not under a “disability”

within the meaning of the Social Security Act. After consideration

by the Appeals Council, Williams’ case was remanded for further

proceedings to allow him to submit additional medical records. The

ALJ held a hearing on March 20, 1991, as well as a supplemental

hearing on November 27, 1991, at which time he considered the

results of additional consultative examinations, the testimony of

vocational experts following the submission of interrogatories, and

the testimony of Williams and additional lay witnesses offered by

Williams to establish the extent of his disability. 

On January 9, 1992, the ALJ issued a second decision finding,

inter alia, that: (1) Williams suffered impairments which, while

severe, did not come within the criteria for listed impairments set

forth in the relevant regulations; (2) Williams could not perform
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his past relevant work; but (3) Williams could perform other

unskilled sedentary work available in significant numbers in the

national economy as identified by the vocational experts.

Therefore, the ALJ again concluded that Williams was not under a

“disability” within the meaning of the Social Security Act. The

Appeals Council denied Williams’ request for review of the ALJ’s

decision on November 5, 1992.

In January 1993, Williams filed the instant suit in the court

below challenging the SSA’s disposition of his claim. In June and

August 1993, the parties filed motions for summary judgment. On

October 13, 1994, the district court granted the SSA’s motion and

entered a Rule 58 judgment in favor of the SSA. Williams filed a

timely notice of appeal from that judgment on December 9, 1994.

Williams thereafter filed a Motion to Vacate and/or to Reconsider

Summary Judgment and for Rehearing on December 16, 1994, in which

he asserted that “new and material evidence,” specifically an I.Q.

test, required that the judgment be reopened. The district court

denied Williams’ motion by order entered February 23, 1995.

Williams filed no new notice of appeal from the denial of his Rule

60(b)motion.

 Discussion

Although the possible lack of jurisdiction as to the denial of

the Rule 60(b) motion has not been raised by the parties, we are

obligated to examine the basis for our jurisdiction, sua sponte, if

necessary. Bader v. Atlantic Intern., Ltd., 986 F.2d 912, 914 (5th

Cir. 1993). As noted above, while Williams filed a timely notice
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of appeal from the district court’s October 13, 1994, judgment in

favor of the SSA, no notice of appeal was filed from the denial of

Williams’ December 16, 1994, motion under Rule 60(b). Yet in his

brief before this Court, Williams complains only of the denial of

his Rule 60(b) motion by the court below. These facts create a

jurisdictional question that gives us pause.

A Rule 60(b) motion may be made at any time within one year

from the entry of judgment, regardless of the pendency or

completion of an appeal from the underlying judgment. See Ingraham

v. United States, 808 F.2d 1075, 1080-81 (5th Cir. 1987). The

denial of a Rule 60(b) motion is itself separately appealable. Id.

at 1081. Furthermore, an appeal from the denial of Rule 60(b)

relief does not bring up the underlying judgment for review,

Browder v. Director, Dept. of Corrections of Illinois, 98 S.Ct.

556, 560 n.7 (1978); see also Jones v. Phipps, 39 F.3d 158, 161-62

(7th Cir. 1994)(notice of appeal of denial of Rule 60(b) motion

does not bring up underlying default judgment), or vice versa. See

Schwegmann Bank & Trust Co. of Jefferson v. Simmons, 880 F.2d 838,

844 (5th Cir. 1989)(appeal of underlying judgment does not raise

subsequent denial of 60(b) motion for review). Accordingly, we

have previously recognized that where a Rule 60(b) motion is filed

after the notice of appeal from the underlying judgment, a separate

notice of appeal is required in order to preserve the denial of the

Rule 60(b) motion for appellate review. Ingraham, 808 F.2d at

1080-81; McKethan v. Texas Farm Bureau, 996 F.2d 734, 744 (5th

Cir. 1993), cert. denied, 114 S.Ct. 694 (1994); accord, Goffman v.
1 We are mindful of the Supreme Court’s admonition in Smith v.

Barry, 112 S.Ct. 678 (1992), that the requirements of Federal Rule

of Appellate Procedure 3(c) governing the contents of the notice of

appeal are to be construed liberally, and that a brief may serve as

the “functional equivalent” of a notice of appeal provided that it

meets the requirements of Rules 3(c) and 4. Yet given the separate

nature of the 60(b) motion as demonstrated above and the procedural

sequence in the present case, we conclude that Smith is

inapplicable here. 

In Smith, the pro se prisoner appellant attempted to file a

notice of appeal that was technically deficient under Federal Rule

of Appellate Procedure 4(a)(4) because it was filed prior to the

disposition of a pending post-verdict motion for judgment as a

matter of law. By contrast, Williams made no attempt to file any

notice of appeal from the denial of his requested 60(b) relief;

rather, before he even filed his Rule 60(b) motion and long before

it was acted on, he filed a notice of appeal from the underlying

judgment. This is a valid notice of appeal and brings up the

underlying judgment, but cannot possibly be construed as even

attempting to include the order denying the Rule 60(b) motion.

This notice of appeal has never been amended, and no new notice of

appeal has been filed. Williams’only appellant’s brief, filed

April 18, 1995, does not purport to contain a notice of appeal or

to supplement or amend the previous notice of appeal. Williams was

due to file an appellant’s brief in his appeal from the October 13,

1994, judgment and only by reading well into the body of that brief

does one realize that its argument is really directed at the

February 23, 1995, order denying the Rule 60(b) motion, not the

October 13, 1994, summary judgment from which the December 9, 1994,

notice of appeal had been given. Thus, for example, the brief

commences by stating “Appellant is appealing from a Summary

Judgment granted to Appellee.” Williams has been represented by

counsel throughout. Even when construed liberally, to conclude on

these facts that the requirements of Rule 3(c) have been met would

be to essentially eviscerate the rule. 

This conclusion is bolstered by our post-Smith decision in

McKethan as well as that of the Seventh Circuit in Goffman. Both of

these decisions, while not making express reference to Smith, hold

on similar facts that the failure to file a separate notice of

appeal is fatal to appellate jurisdiction to review the denial of

60(b) relief. But cf. Intel Corp. v. Terabyte Intern. Inc., 6 F.3d

614, 617-18 (9th Cir. 1993)(holding that brief served as notice of

appeal from determination of award of attorney’s fees despite fact

that fees determined after appeal noticed from underlying

judgment). 

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Gross, 59 F.3d 668, 672-73 (7th Cir. 1995).1 Absent such a

separate notice of appeal, we are without jurisdiction to review

the trial court’s disposition of a Rule 60(b) motion. It is
2 We further note that even if we had jurisdiction of Williams’

claims pertaining to the denial of his Rule 60(b) motion, he

plainly would not prevail on the merits. A district court’s

disposition of a Rule 60(b) motion is reviewable only for abuse of

discretion so that such motions do not become a means for

circumventing the requirement of a timely appeal. First Nationwide

Bank v. Summer House Joint Venture, 902 F.2d 1197, 1200 (5th Cir.

1990). Furthermore, we have repeatedly held that in order to

prevail on a motion under Rule 60(b)(2) based upon newly presented

evidence, the movant must demonstrate among other things that it

exercised due diligence in obtaining the information. Government

Financial Services One Ltd. Partnership v. Peyton Place, Inc., 62

F.3d 767, 771 (5th Cir. 1995); New Hampshire Ins. Co. v. Martech

USA, Inc., 993 F.2d 1195, 1199 (5th Cir. 1993).

In the present case, Williams seeks to introduce the report of

Dr. James Rice, which states that Dr. Rice evaluated Williams on

November 30, 1994, and that Williams achieved verbal, performance,

and full scale I.Q. scores of 71, 67, and 68 respectively.

Williams argues that Dr. Rice’s evaluation demonstrates that the

ALJ erroneously found Williams to have attained a marginal

educational level rather than finding him to be illiterate, and

therefore erroneously applied the medical-vocational grids. 

However, Williams failed to obtain this evaluation until after

the district court’s entry of judgment on October 12, 1994, and

almost two years after the ALJ’s final decision on January 9, 1992.

Williams maintains that his indigence and limited mental capacity

prevented him from obtaining this evaluation any earlier.

Even if we were able to reach the merits, the record reflects

no abuse of discretion by the district court in denying Williams’

motion for post-judgment relief. Williams failed to exercise due

diligence in obtaining an I.Q. test. The record reflects that

Williams’ verbal and mathematical ability were clearly in issue

before the ALJ. The ALJ demonstrated a willingness to order

additional consultative examinations to document Williams’ medical

disabilities, at no expense to Williams, yet Williams apparently

made no efforts to obtain similar examinations to demonstrate any

mental impairments during the course of the administrative

proceedings. There has been no showing of any change in Williams’

financial circumstances. Williams was represented by counsel

throughout the course of these proceedings before the ALJ and in

the district court (as well as on appeal).

We further note that section 405(g) of the Social Security

Act, 42 U.S.C. § 405(g), requires a showing of good cause for the

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undisputed that Williams failed to file a separate notice of appeal

from the district court’s denial of his Rule 60(b) motion, and

therefore we are bound to conclude that the 60(b) motion is not

properly before us.2
failure to incorporate the evidence into the administrative record

before a remand will be ordered. No such showing was made here.

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Although Williams’ timely notice of appeal from the grant of

summary judgment properly preserved any issues relating to the

underlying judgment for our review, Williams fails to raise any

such issues in his brief to this Court. Therefore, any issues

relating to the propriety of the underlying judgment in this case

have been waived. See, e.g., Applewhite v. Reichhold Chem., Inc.,

67 F.3d 571, 573 & n.7 (5th Cir. 1995).

As none of the claims actually raised by Williams in his brief

are properly before this Court, the district court’s judgment is

AFFIRMED.