UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2236
TILLIE A. LYNN,
Plaintiff - Appellant,
v.
LT. GEN. KEITH B. ALEXANDER, Director,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:07-cv-02860-RDB)
Submitted: March 27, 2012 Decided: April 10, 2012
Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tillie A. Lynn, Appellant Pro Se. Joseph Ronald Baldwin, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tillie A. Lynn seeks to appeal the district court’s
orders granting the Defendant summary judgment on her
retaliation claim under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2000e-17 (West 2003 & Supp. 2010), and
employment discrimination claim under the Rehabilitation Act of
1973, 29 U.S.C. §§ 701-796 (West 2008 & Supp. 2011), and denying
her Fed. R. Civ. P. 60(b) motion to reopen and vacate summary
judgment.
The district court’s order granting the Defendant
summary judgment was entered on December 10, 2009, and Lynn did
not file a notice of appeal. Parties have thirty days after
entry of a district court’s final judgment to file a notice of
appeal, Fed. R. App. P. 4(a)(1)(A), unless the district court
extends the appeal period pursuant to Fed. R. App. P. 4(a)(5),
or reopens the appeal period pursuant to Fed. R. App. P.
4(a)(6). “[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.” Bowles v. Russell, 551
U.S. 205, 214 (2007). Moreover, “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). Nor is Lynn relieved of
the requirement to have filed a timely notice of appeal by the
limited tolling provision of Fed. R. App. P. 4(a)(4)(vi). See
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Fed. R. App. P. 4(a)(4)(vi) (tolling the time to file an appeal
until the entry of the order disposing of a Rule 60 motion
“filed no later than 28 days after the judgment is entered”).
Accordingly, because Lynn did not file a timely notice of appeal
or obtain an extension of the appeal period, we dismiss her
appeal of the district court’s December 10, 2009 order for lack
of jurisdiction.
We review the denial of a Rule 60(b) motion for abuse
of discretion. MLC Auto., LLC v. Town of S. Pines, 532 F.3d
269, 277 (4th Cir. 2008). A movant seeking relief from a
judgment under Rule 60(b) must make a threshold showing of
“timeliness, a meritorious defense, a lack of unfair prejudice
to the opposing party, and exceptional circumstances.” Dowell,
993 F.2d at 48 (internal quotation marks and citation omitted).
Once a movant makes this showing, she then must establish: “(1)
excusable neglect; (2) newly discovered evidence; (3) fraud; (4)
the judgment is void; (5) the judgment has been satisfied,
released, or discharged; or (6) any other reason justifying
relief.” Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94 (4th Cir.
1997). “A motion under Rule 60(b) must be made . . . no more
than a year after the entry of the judgment” for reasons (1),
(2), and (3). Fed. R. Civ. P. 60(c)(1). “In ruling on an
appeal from a denial of a Rule 60(b) motion, this [c]ourt may
not review the merits of the underlying order; it may only
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review the denial of the motion with respect to the grounds set
forth in Rule 60(b).” In re Burnley, 988 F.2d 1, 2 (4th Cir.
1992).
Lynn fails to establish a threshold showing of
timeliness. Lynn seeks relief under Rule 60(b)(1) based upon
excusable neglect; however, as she filed her Rule 60(b) motion
one year and four months after the district court entered its
judgment and fails to present a reasonable explanation for her
delay, her motion is untimely. Moreover, we fully concur with
the district court’s assessment that Lynn failed to present a
meritorious defense to the motion for summary judgment, a lack
of unfair prejudice to the Defendant, and exceptional
circumstances.
Accordingly, we affirm the district court’s order
denying Lynn’s Rule 60(b) motion. 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
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