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
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.
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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
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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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
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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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.
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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