Acevedo Villalobos v. Hon. Hernandez

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-1544

             NORMA I. ACEVEDO-VILLALOBOS, ET AL.,

                   Plaintiffs, Appellants,

                              v.

                HON. RAFAEL HERNANDEZ, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

     [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
                                                        

                                         

                            Before
                      Cyr, Circuit Judge,
                                        
                Bownes, Senior Circuit Judge,
                                            
                  and Stahl, Circuit Judge.
                                          

                                         

Jesus Hernandez-Sanchez, with  whom Hernandez-Sanchez Law Firm was
                                                              
on brief for appellants.
Fidel  A. Sevillano  Del Rio,  Assistant United  States  Attorney,
                            
with whom Guillermo  Gil, United  States Attorney,  Donnie R.  Murray,
                                                                 
Deputy Regional Counsel, United States Department of Housing and Urban
Development, and Teresa Pombo, Chief Counsel, United States Department
                         
of  Housing and Urban Development, were on brief for appellees, United
States, et al.
Vannessa  Ramirez-Kausz,   Assistant  Solicitor  General  for  the
                       
Commonwealth  of  Puerto  Rico,  with whom  Carlos  Lugo-Fiol,  Deputy
                                                         
Solicitor General, was on brief for appellee, Commonwealth.

                                         

                        April 28, 1994
                                         

          BOWNES, Senior Circuit Judge.  This appeal raises a
          BOWNES, Senior Circuit Judge.
                                      

procedural  question  of  first  impression  in our  circuit:

whether  the  dismissal  of   a  complaint,  which  does  not

explicitly   dismiss   the  action,   constitutes   a  "final

decision[]," and  is therefore  appealable under 28  U.S.C.  

1291.1    We  rule  in  the  affirmative,  holding  that  the

plaintiffs had  both the  right to  appeal from the  judgment

dismissing their complaint and  the duty to do so in a timely

manner.  Because plaintiffs'  appeal was not timely, we  lack

jurisdiction  to  review  the  dismissal  of  the  complaint.

Furthermore,  we  conclude  that  appellate  jurisdiction  is

lacking over the district court's denial of plaintiffs' first

motion for  postjudgment relief,  and that their  second such

motion  was untimely,  and therefore  properly denied  by the

district court.  Accordingly, we affirm.

                              I.

                          BACKGROUND
                                    

          Plaintiffs-appellants  are,  for  the   most  part,

former   employees  of   the  Puerto   Rico   Public  Housing

Administration  (PRPHA).   On  May  2,  1992,  PRPHA and  the

Commonwealth of  Puerto Rico, acting through  former governor

Rafael    Hernandez   Colon,   signed   an   agreement   with

representatives  of the United  States Department  of Housing

                    

1.  Section  1291 provides:   "The  courts of  appeals .  . .
shall have  jurisdiction of appeals from  all final decisions
of the district courts of the United States. . . ."

                             -2-
                              2

and  Urban  Development  (HUD).   Under  the  agreement,  the

Commonwealth  and HUD agreed to take certain actions in order

to expedite the privatization  of the management of federally

funded public housing projects in Puerto Rico, as well as the

decentralization of PRPHA.   The privatization provisions  of

the agreement are at the center of plaintiffs' claims.

          The agreement committed the Commonwealth to pursue,

and  HUD to support,  a plan to  privatize federally assisted

housing  projects  by  transferring  the  administration  and

maintenance of such  projects to private  contractors.  As  a

result  of  this  privatization,  a  sizeable  percentage  of

PRPHA's employees would  be laid off.   The agreement between

HUD  and  PRPHA  briefly  addresses  the  plight  of  PRPHA's

employees in a cursory manner:

          The   private   management  process   may
          require  the   elimination  of  positions
          within  the  present  structure   of  the
          PRPHA.  Employees holding  said positions
          will receive benefits as provided by law.
          HUD  will  provide  federal  funding  for
          payment of their benefits  resulting from
          the   federally  funded   public  housing
          program.    The  Commonwealth  will  fund
          costs ineligible for federal funding.

Privatization Agreement,  Art. I,    4.   In addition,  PRPHA

agreed to encourage  private contractors to  employ displaced

employees.     Id.  at     6b.    Shortly  thereafter,  PRPHA
                  

formulated  a  layoff  plan   to  comply  with  the  relevant

provisions of Puerto Rico's Public Service Personnel Act, see
                                                             

3 L.P.R.A.   1336(6).   A layoff plan was finalized in  April

                             -3-
                              3

1992,  and  the privatization  agreement was  set to  go into

effect on August 1.

          On  June  26,  1992  letters  were  sent  to  PRPHA

employees notifying them that,

          [s]ince  you  are  one  of   the  persons
          affected by layoffs,  we notify you  that
          owing to  lack of work, we  have no other
          alternative  than  to decree  your layoff
          from  public  service effective  July 31,
          1992.   We  advise you  of your  right to
          present    arguments    or    documentary
          evidence,  if  any[,] which  you consider
          will benefit you,  before the  designated
          official.

On July 15, 1992, plaintiffs filed an action in United States

District  Court  for  the  District of  Puerto  Rico  against

various  Commonwealth  and  federal  agencies  and officers,2

seeking injunctive, declaratory and monetary relief.

          Plaintiffs' constitutional claims against the state

defendants  are predicated upon 42 U.S.C.   1983, while their

constitutional  claims  against  the federal  defendants  are

based  on the  doctrine set  forth in  Bivens v.  Six Unknown
                                                             

Named  Agents,  403 U.S.  388 (1971).    The major  themes of
             

plaintiffs' complaint  are  as follows.    First,  plaintiffs

allege  that  the  privatization  agreement  is  invalid (and

                    

2.  The  defendants in this action fall into two groups:  the
United  States of  America,  HUD, and  various HUD  officials
(hereinafter,  the  "federal  defendants"),  and  the  former
governor of Puerto Rico,  PRPHA, and various PRPHA officials.
(hereinafter,   the  "state   defendants").     All  of   the
individuals  were   sued  in  their   official  and  personal
capacities.

                             -4-
                              4

consequently that  the layoffs  were illegal) because  it was

entered into  in violation  of both Puerto  Rico and  federal

law, and that the various  local and federal defendants acted

ultra   vires  by   signing  the  agreement.     Accordingly,
             

plaintiffs  allege  that the  layoffs  were  illegal.   Next,

plaintiffs allege that they had a property interest  in their

jobs,  and that they were  deprived of this property interest

without  due process.   Finally,  plaintiffs maintain  that a

Puerto Rico  official made derogatory comments  about them in

public,  thereby  depriving  them  of  "liberty"  without due

process.

          On October 27, 1992,  the state defendants moved to

dismiss   the  complaint,   or  alternatively,   for  summary

judgment, on a plethora of grounds including, but not limited

to,  the complaint's  failure  to state  a  claim upon  which

relief could be granted.  See Fed. R. Civ. P.  12(b)(6).  Two
                             

days  later  the state  defendants  moved  to stay  discovery

pending the court's  resolution of their  dispositive motion.

The court granted the requested stay.

          On January 15, 1993, the district court granted the

state defendants' motion  to dismiss.  The  court stated that

"[p]laintiffs' complaint  fails to  provide the Court  with a

clear idea of the contours of their claims and  also fails to

provide appropriate support for their allegations."  Gonzalez
                                                             

v. Hernandez, No.  92-1972, slip  op. at 4  (D.P.R. Jan.  15,
            

                             -5-
                              5

1993).   According  to the  court, plaintiffs'  complaint was

"infected   with   conclusory   allegations   and   unfounded

accusations," id.  at 5-6, and  "insufficiently illustrate[d]
                 

the  essential nature  of their claim[s]."   Id.  at 4.   The
                                                

court  dismissed  plaintiffs'  complaint  in   its  entirety,

stating:  "The Court therefore ORDERS that defendants' Motion

to Dismiss pursuant  to Rule 12(b)(6)  is hereby GRANTED  and

that plaintiffs' complaint is hereby  DISMISSED."  Id. at  6.
                                                      

On  the same  day the  court entered  judgment on  a separate

document, pursuant to  Fed. R.  Civ. P. 58  and 79(a),  which

stated as  follows:  "By virtue of the Opinion & Order of the

Court, entered on  this date, it is  hereby ORDERED, ADJUDGED

and  DECREED  that   plaintiffs'  complaint  is   DISMISSED."

Plaintiffs filed two postjudgment motions for relief, both of

which were denied.  This appeal ensued.

                             II.

                          DISCUSSION
                                    

          In  their  notice of  appeal  filed  May 14,  1993,

plaintiffs  list four  decisions of  the district  court from

which  they appeal:   (1)  the judgment  of January  15, 1993

dismissing the  complaint, and the court's  opinion and order

of the same date; (2) the order of November 30, 1992 granting

a  stay of discovery; (3) the  order of March 2, 1993 denying

plaintiffs' first  Rule 59(e) motion  for reconsideration and

                             -6-
                              6

to  amend the complaint; and (4)  the order of April 19, 1993

denying plaintiffs'secondRule 59(e)motionforreconsideration.3

A.  Dismissal of the Complaint
                              

          Under Fed. R. App.  P. 4(a)(1), any party appealing

from  a judgment or order  of the district  court, where "the

United  States or an officer  or agency thereof  is a party,"

must file a notice of appeal within sixty days of the date of

entry of the judgment or order.  Timely filing of a notice of

appeal is  "mandatory  and jurisdictional."   Perez-Perez  v.
                                                         

Popular Leasing Rental,  Inc., 993  F.2d 281,  283 (1st  Cir.
                             

                    

3.  The plaintiffs asserted, at oral argument before us, that
the district  court had dismissed only  the state defendants'
claims,  leaving the  federal defendants'  claims unresolved.
Thus, appellants argued, this court should remand the case to
permit  the district  court to  comply with  Fed. R.  Civ. P.
54(b) (where  multiple claims  or parties are  involved court
may direct  entry of  final judgment  as to  one or  more but
fewer  than  all the  claims or  parties).   At no  point did
plaintiffs ever assert or  suggest this contention before the
district court, either in  their motions for  reconsideration
or in any of  their numerous other postjudgment filings.   In
all events, however, their belated contention, if not waived,
is without merit.

    The district court  unmistakably intended to  dismiss the
complaint  in toto, pursuant to Fed. R. Civ. P. 12(b)(6), for
                  
failure to state a  cognizable cause of action.   Its opinion
and order  is most  reasonably read as  having dismissed  the
entire complaint even though it adverts only to the motion to
                
dismiss  filed by  the  state defendants.   Furthermore,  the
final  judgment itself  expressly dismissed  "the plaintiffs'
complaint" after  the federal defendants had  filed their own
                
motion to  dismiss shortly before the  district court entered
its opinion and final judgment.  We are satisfied, therefore,
that plaintiffs'  belated Rule  54(b) contention in  no sense
warrants  an inference  that  plaintiffs were  misled or  the
judgment was  not final.   Consequently, the  requirements of
Rule 54(b) are not implicated.

                             -7-
                              7

1993) (quoting Browder v. Director, Dep't of Corrections, 434
                                                        

U.S.  257, 264  (1978)).   In  the present  case, plaintiffs'

notice of appeal was filed more  than 100 days after entry of

the judgment dismissing  the complaint.   But, under Fed.  R.

App. P. 4(a)(4), a  timely motion to alter or  amend judgment

pursuant to Fed. R. Civ. P. 59(e) tolls the time for filing a

notice of appeal, and  the time for filing the  notice starts

to run  from the entry of the order denying said motion.  See
                                                             

United States v. 789  Cases of Latex Surgeon Gloves,  13 F.3d
                                                   

12, 14 (1st Cir. 1993); Fed. R. App. P. 4(a)(4).   Under Rule

59(e),  "[a] motion to alter  or amend the  judgment shall be

served not later than  10 days after entry of  the judgment."

Fed. R. Civ. P. 59(e).

          Although plaintiffs' original Rule 59(e) motion was

timely filed (it was served within ten days from the entry of

the  judgment  dismissing  the  complaint),  their notice  of

appeal was not filed until sixty-four days after the entry of

the order denying of the motion.  Thus, even with the benefit

of Rule  4(a)(4)'s tolling  provision, plaintiffs' notice  of

appeal  was seemingly late.   We lack  jurisdiction over late

appeals.

          This brings  us to  the principal issue  on appeal:

Plaintiffs  now  argue  that  the  judgment dismissing  their

complaint was not a "final decision" within the meaning of 28

U.S.C.   1291, and that their time to file a notice of appeal

                             -8-
                              8

did not start to run until the denial of  their second motion

for  reconsideration.  Because the notice of appeal was filed

within sixty days  from the  entry of the  order denying  the

second motion,  plaintiffs  maintain  that  their  notice  of

appeal was timely with respect to the underlying judgment.

          We have never ruled on this procedural dilemma.  It

has,  however, given  rise to  some disagreement  among those

circuits  that have.  Three distinct views have emerged.  The

Seventh  and Ninth Circuits have held that the dismissal of a

complaint, as opposed to the dismissal of an action, is not a

final,  appealable order,  unless  the trial  court has  made

clear in dismissing  the complaint that the  action could not

be  saved by amendment.   See Benjamin v.  United States, 833
                                                        

F.2d  669, 672 (7th Cir.  1987); Ruby v.  Secretary of United
                                                             

States Navy, 365 F.2d 385, 387 (9th Cir. 1966), cert. denied,
                                                            

386  U.S. 1011  (1967).   On the  other hand, the  Second and

Eighth  Circuits have held  that, absent an  express grant of

leave to  amend, an order  dismissing the complaint  is final

and  appealable.  See Weisman v. LeLandais, 532 F.2d 308, 309
                                          

(2d  Cir. 1976); Quartana  v. Utterback, 789  F.2d 1297, 1300
                                       

(8th Cir.  1986).  Finally,  the Eleventh Circuit  has carved

out  a middle  ground.   It has  held that  such an  order of

dismissal  is not final if "the plaintiff could not have been

reasonably expected to realize that the court was  entering a

                             -9-
                              9

final order."   Czeremcha v. International  Ass'n of Mach.  &
                                                             

Aero. Workers, 724 F.2d 1552, 1555 (11th Cir. 1984).
             

          Before  deciding  which,  if  any,  of  these three

approaches   to  adopt,  we  briefly  explain  the  rationale

underlying each.   The Seventh  and Ninth Circuits  have held

that the dismissal of a complaint is not final and appealable

because a motion  to dismiss is  not a "responsive  pleading"

within the  meaning of  Fed. R.  Civ. P.  15(a),4 and thus  a

plaintiff still retains his or  her right to amend once as  a

matter  of course  under Rule  15(a) even  after a  motion to

dismiss has been  granted.   See Car Carriers,  Inc. v.  Ford
                                                             

Motor Co., 745 F.2d 1101, 1111 (7th Cir. 1984), cert. denied,
                                                            

470  U.S.  1054  (1985);  222  East  Chestnut  St.  Corp.  v.
                                                         

Lakefront  Realty  Corp.,  256  F.2d 513  (9th  Cir.),  cert.
                                                             

denied, 358 U.S. 907 (1958).
      

          In Elfenbein  v. Gulf  & Western Indus.,  Inc., 590
                                                        

F.2d  445,  448  n.1  (2d  Cir.  1978),  the  Second  Circuit

explained  that  the split  on this  issue  was based  on the

circuits' differing views on  the right to amend  a complaint

                    

4.  Rule 15(a) provides, in relevant part:

          A  party may  amend the  party's pleading
          once as  a matter  of course at  any time
          before a responsive pleading is served. .
          .  .   Otherwise  a party  may amend  the
          party's  pleading  only by  leave  of the
          court  or  by   written  consent  of  the
          adverse party; and leave shall  be freely
          given when justice so requires.

                             -10-
                              10

under Rule 15(a) once  a motion to dismiss has  been granted.

The court stated:

          [W]hile the law in this circuit is that a
          motion to  dismiss  is not  a  responsive
          pleading, and therefore the complaint may
          be  amended without  leave  of the  court
          [after  such  a  motion is  made],  it is
          equally well established that  this right
          terminates  upon  the  granting   of  the
          motion to dismiss.

Id. (citations  omitted).   The Eighth Circuit,  which shares
   

the  Second Circuit's view that the right to amend under Rule

15(a) terminates upon dismissal,  found that this distinction

provided support for following the Second Circuit's rule that

the  dismissal of a complaint was a "final decision," but did

not  view  the  distinction  dispositive.5   Ultimately,  the

Eighth Circuit joined the Second, reasoning as follows:

          Where matters of finality  (and therefore
          of appellate jurisdiction) are concerned,
          we  believe it preferable  to adopt rules
          that  promote clarity and certainty.  The
          Second  and Ninth  Circuit rules  have an
          advantage  over  that  of   the  Eleventh
          Circuit in this regard because they focus
          solely on  the language of  the dismissal
          order,  requiring  an  explicit  contrary
          statement  to  avoid  a   presumption  of
          finality (Second Circuit) or non-finality
          (Ninth Circuit). Comparing the Second and

                    

5.  The  court  cited  the  Eleventh  Circuit's  opinion   in
Czeremcha,  724 F.2d  at 1554-56,  to illustrate  this point.
         
According  to  the Eleventh  Circuit,  after  a complaint  is
dismissed the right to amend under Rule 15(a) terminates. But
the  dismissal  does not  act as  a  final judgment,  and the
plaintiff  may still move the court for leave to amend unless
the "court has clearly indicated either that no  amendment is
possible or that dismissal  of the complaint also constitutes
dismissal of the action."  Id. at 1556 n.6.
                              

                             -11-
                              11

          Ninth Circuit rules,  that of the  Second
          Circuit commends itself because it avoids
          confusion over when  a plaintiff's  right
          to    amend    a   dismissed    complaint
          terminates, the order becomes  final, and
          the time for appeal begins to run.

Quartana, 789 F.2d at 1300. 
        

          The "intermediate approach"  taken by the  Eleventh

Circuit  was grounded in  that court's desire  to formulate a

rule consistent with "Rule 15's liberal mandate that leave to

amend  be `freely  given when  justice so  requires,' without

granting the plaintiff  carte blanche power to  reopen a case

at  will by  filing an  amendment."   Czeremcha, 724  F.2d at
                                               

1554-55.  Under this approach, "[a]lthough the plaintiff does

not  have  a  right to  amend  as a  matter  of  course after

dismissal of  the complaint [see supra note 5], the dismissal
                                      

itself does not automatically terminate the action unless the

court  holds either that no amendment is possible or that the

dismissal of the complaint  also constitutes dismissal of the

action."  Id. at 1554 (footnotes omitted).
             

          We  find  the  reasoning  employed  by  the  Eighth

Circuit  to  be  compelling,  and  thus  adopt  the  approach

embraced  by  that   court  and  the  Second  Circuit.    Our

conclusion  that  the  order  in   this  case  is  final   is

strengthened by several factors.   First, consistent with the

Second and Eighth Circuits,  a plaintiff's time to  amend his

or  her complaint  as  a matter  of  right within  the  First

Circuit terminates  upon a district court's  dismissal of the

                             -12-
                              12

complaint.   See Jackson v. Salon,  614 F.2d 15, 17 (1st Cir.
                                 

1980).  Second, the dismissal of the complaint in the present

case  was set forth in  a separate document,  as required for

final judgments under Fed. R. Civ. P. 58.  See  Quartana, 789
                                                        

F.2d at 1300 n.2.   Third, plaintiffs, as evidenced  by their

Rule 59(e) motions, apparently  understood the judgment to be

final.    See  id.6    And  finally,  the  dismissal  of  the
                  

complaint   fits  comfortably   under  the   Supreme  Court's

definition  of a "final decision."   The Court  has defined a

"final decision" as  one that  "`ends the  litigation on  the

merits and leaves nothing for the court to do but execute the

judgment.'"  Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
                                                   

368, 373-74 (1981) (quoting Catlin v. United States, 324 U.S.
                                                   

229, 233 (1945)).   A dismissal for failure to  state a claim

under Fed.  R. Civ. P. 12(b)(6) is  a decision on the merits.

See Local No. 714 v. Greater Portland Transit Dist., 589 F.2d
                                                   

1,  6 (1st  Cir. 1978);  see also  5 James  W. Moore  et al.,
                                 

Moore's  Federal Practice    41.14  at 41-170 (2d  ed. 1993).
                         

Here the complaint  was dismissed by  the district court  for

failure  to state a claim,  and judgment was  then entered on

the docket and set forth on a separate document in accordance

with  Fed. R.  Civ.  P.  58  and  79(a).    Accordingly,  the

                    

6.  Thus, it  appears that plaintiffs have  constructed their
present argument  after the  fact in an  attempt to  preserve
appellate review of the dismissal of their complaint.

                             -13-
                              13

dismissal  of  plaintiffs'  complaint  possesses all  of  the

markings of a "final decision."

          In short, we  hold that when a  district court uses

the  words, "The  complaint is dismissed,"  without expressly

granting  the plaintiff  leave  to amend,  this  is a  "final

decision" from which a  timely appeal may be taken.   Because

there was not  a timely  appeal taken by  plaintiffs we  lack

appellate jurisdiction over their  attack on the dismissal of

the complaint.

          Plaintiffs  also argue  that  the second  motion to

reconsider,  which was served within 10 days of the denial of

the  first motion,  extended  the time  period  for filing  a

notice of appeal from the dismissal of the complaint, thereby

rendering the notice timely.  This argument has no merit.  It

is well settled that a motion for reconsideration served more

than ten days after the entry of judgment does not effect the

time for  appealing  from that  judgment.   See Feinstein  v.
                                                         

Moses,  951 F.2d  16, 18  (1st  Cir. 1991);  Fed. R.  App. P.
     

4(a)(4);  see also 6A Moore,  supra   59.13[3]  at 59-282 ("A
                                   

[second] motion for reconsideration  that is served more than

ten  days  after the  entry of  judgment  has no  effect upon

appeal  time, which runs from the entry of the original order

denying  . . . an alteration or amendment of the judgment.").

Because  plaintiffs' second  motion  for reconsideration  was

served two months  after entry of the judgment dismissing the

                             -14-
                              14

complaint, it was untimely under Rule 59(e), and did not toll

the  appeal period for that  judgment.  See  Jusino v. Zayas,
                                                            

875 F.2d 986, 989 (1st Cir. 1989).7

B.  Postjudgment Motions for Reconsideration
                                            

          Where, as  here, a  complaint is dismissed  without

leave to  amend, the plaintiff  can appeal  the judgment,  or

alternatively,  seek leave  to amend  under Rule  15(a) after

having the  judgment  reopened under  either Rule  59 or  60.

Unless postjudgment  relief  is granted,  the district  court

lacks  power to grant a  motion to amend  the complaint under

Rule 15(a).  See  Public Citizen v. Liggett Group,  Inc., 858
                                                        

F.2d  775, 781 (1st Cir.  1988), cert. denied,  488 U.S. 1030
                                             

(1989);  see also 3 Moore supra   15.10 at 15-107 ("[A]fter a
                               

judgment of  dismissal plaintiff must move  under Rules 59(e)

or 60(b) to  reopen the  judgment."); 6 Charles  A. Wright  &

Arthur R. Miller,  Federal Practice and  Procedure   1489  at
                                                  

692-93 (1990) ("[O]nce judgment is  entered the filing of  an

amendment cannot be allowed  until the judgment is set  aside

or vacated under Rule 59 or Rule 60.").

          On February 1,  1993, within ten days of  the entry

of judgment,  plaintiffs served a motion  for reconsideration

and/or to alter or amend the judgment pursuant to Rule 59(e),

                    

7.  In addition,  plaintiffs appeal from the district court's
decision  to stay  discovery  pending the  resolution of  the
state defendants' motion to  dismiss or for summary judgment.
As a result of the foregoing discussion, we lack jurisdiction
over this appeal.

                             -15-
                              15

together with a motion to amend  the complaint accompanied by

a proposed  amended complaint.8   On February  12, plaintiffs

filed  a document  entitled  "Supplemental Arguments  to  our

Motion  for Reconsideration."   These  supplemental arguments

were an expansion of several  arguments made by plaintiffs in

the Rule  59(e) motion.   On February 26,  federal defendants

filed  a  response  to  plaintiffs'  supplemental  arguments.

Finally, on  March 3,  the district court  denied plaintiffs'

motion for reconsideration,  effectively denying their motion

for  leave to  amend the  complaint.   The court  declined to

address plaintiffs' supplemental  arguments, indicating  that

they were "moot."9

          On March 15, 1993, plaintiffs filed a second motion

for  reconsideration   under  Rule  59(e).     We  note  that

plaintiffs'  second   motion  for  reconsideration   did  not

specifically  invoke  Rule 59(e),  or  for  that matter,  any

federal rule.   Nonetheless,  we have consistently  held that

"`a  motion which  ask[s]  the court  to  modify its  earlier

disposition  of the  case because  of an  allegedly erroneous

legal  result  is brought  under  Fed.  R.  Civ. P.  59(e).'"

Feinstein, 951 F.2d  at 19 n.3 (quoting  Lopez v. Corporacion
                                                             

                    

8.  The  motion also  cites Rule  60(b)(6) but  identifies no
"extraordinary circumstances" that might bring this provision
into play.  Vargas v. Gonzalez, 975 F.2d 916, 917-18 n.1 (1st
                              
Cir. 1992).

9.  Plaintiffs do not appeal from the court's order declining
to address the supplemental arguments.

                             -16-
                              16

Azucarera  de  Puerto Rico,  938  F.2d 1510,  1513  (1st Cir.
                          

1991));  789 Cases  of Latex  Surgeon Gloves,  13 F.3d  at 14
                                            

("[A] post  judgment motion  asking the  court to  change its

disposition  solely because  of legal  error must  be brought
                   

under Rule 59(e)." (emphasis in  original)).  Where, as here,

the  motion sought  to  set aside  the court's  prior rulings

solely on the basis  of alleged legal errors, it  is properly

treated as a motion brought under Rule 59(e).

          On April  21, the district court  denied the second

motion to reconsider and  warned plaintiffs that it  would no

longer entertain motions for postjudgment relief.  Plaintiffs

appeal  from  the  district   court's  orders  denying   both

postjudgment  motions.   We  have consistently  held that  an

order denying  a Rule  59(e) motion challenging  the judgment

constitutes  a   "judgment,"  and  is   therefore  appealable

separately  from  the  appeal  of  the  underlying  judgment.

Kersey v. Dennison  Mfg. Co., 3 F.3d  482, 485 n.6 (1st  Cir.
                            

1993); Fiore  v. Washington Cty. Com. Mental Health Ctr., 960
                                                        

F.2d 229, 233 (1st Cir. 1992).

          In  this  case,  plaintiffs'  original  Rule  59(e)

motion was timely, i.e., it was served within ten days of the
                       

judgment,  excluding intermediate  weekends and  holidays, as

required by Fed. R. Civ. P. 6(a).  But  plaintiffs' notice of

appeal  was not filed until sixty-four  days after the denial

of this motion, and  therefore the notice was untimely.   See
                                                             

                             -17-
                              17

supra page 7.   Plaintiffs argue, however, that  their second
     

Rule  59(e) motion (served within  ten days of  the denial of

the  original Rule  59(e)  motion) extended  the time  period

within  which to  file  a notice  of  appeal from  the  order

denying  the original motion.   Id.10  Because  the notice of
                                   

appeal  was filed  within sixty  days from  the entry  of the

order denying the second motion, plaintiffs conclude that the

notice was timely with  respect to both postjudgment motions.

We disagree.

          Although    it    was    entitled    "Motion    for

Reconsideration of  the Last  Decision Issued and  Entered by

the Honorable  Court," plaintiffs'  second Rule 59(e)  motion

was an obvious attempt to have the district court revisit the

legal  basis  for its  January  15,  1993 opinion  and  order

dismissing  the  complaint.     In  their  second  motion  to

reconsider,  plaintiffs  merely elaborated  on  various legal

arguments  that were  addressed,  albeit in  less detail,  in

their original  Rule 59(e) motion.  Thus, plaintiffs not only

requested  the same relief in the second Rule 59(e) motion as

they did in the first, including, inter alia, that (1) "[t]he
                                            

judgment  dismissing the  complaint  be set  aside," and  (2)

"[d]iscovery proceedings be allowed to continue," they sought

                    

10.  We have already determined that plaintiffs'  second Rule
59(e) motion  did not extend the time  for filing a notice of
appeal from the dismissal of the complaint.  See supra p. 13-
                                                      
14.

                             -18-
                              18

that relief  on the  same grounds.   Accordingly, plaintiffs'

second  Rule 59(e)  motion  must be  viewed  as a  motion  to

reconsider  the  judgment  dismissing  the  complaint.    See
                                                             

Echevarria-Gonzalez  v. Gonzalez-Chapel, 849 F.2d 24, 26 (1st
                                       

Cir.  1988)   ("`nomenclature  should  not  be  exalted  over

substance'" (quoting Lyell Theatre  Corp. v. Loews Corp., 682
                                                        

F.2d 37, 41 (2d Cir. 1982))).

          Because plaintiffs'  second  Rule 59(e)  motion  to

reconsider  was,  in  reality,  a motion  to  reconsider  the

judgment dismissing  the complaint, and it  was untimely (not

served within 10 days of entry of the judgment), the district

court was without jurisdiction to grant it.  Vargas, 975 F.2d
                                                   

at 918;  Rodriguez-Antuna v. Chase Manhattan  Bank Corp., 871
                                                        

F.2d  1, 2-3  (1st  Cir. 1989).    Furthermore, the  untimely

second motion  to reconsider could  not enlarge the  time for

filing a notice of appeal from the order denying the original

motion to reconsider.  See Feinstein, 951 F.2d at 18; Fed. R.
                                    

App. P. 4(a)(4).

          Therefore,  to the extent that plaintiff challenges

the March  3,  1993 order  denying  the original  Rule  59(e)

motion,  the  appeal  is  dismissed  for  lack  of  appellate

jurisdiction.   To the extent that they seek to challenge the

April 19,  1993 order denying  the second Rule  59(e) motion,

the order is affirmed.

          The judgment of the district court is Affirmed.
                                                Affirmed
                                                        

                             -19-
                              19