Massop v. United States Postal Service , 493 F. App'x 231 ( 2012 )

11-4816
Massop v. U.S. Postal Serv.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 29th day of August, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
__________________________________________
Tracy Massop,
Plaintiff-Appellant,
v. 11-4816-cv
United States Postal Service,
Defendant-Appellee.
__________________________________________
FOR PLAINTIFF-APPELLANT: Tracy Massop, pro se, Brooklyn, N.Y.
FOR DEFENDANT-APPELLEE: Scott R. Landau, Assistant United States Attorney,
for Loretta E. Lynch, United States Attorney for the
Eastern District of New York.
Appeal from an order of the United States District Court for the Eastern District of New
York (Townes, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Appellant Tracy Massop, proceeding pro se, appeals the district court’s order denying her
construed Federal Rule of Civil Procedure 60(b) motion for reconsideration of the district court’s
sua sponte dismissal of her complaint brought under the Federal Tort Claims Act, 28 U.S.C.
§§ 1346, 2671-2680, for lack of subject matter jurisdiction. Massop’s complaint primarily
concerned alleged deficiencies in her postal service; the district court ruled that her claims fell
under the “postal matter exception” to the Act, see 28 U.S.C. § 2680(b) (providing that the Act’s
waiver of sovereign immunity does not apply to “[a]ny claim arising out of the loss, miscarriage,
or negligent transmission of letters or postal matter”). We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.
As an initial matter, we must determine the scope of our appellate review. Here, because
Massop appeals only from the district court’s November 2011 order denying her Rule 60(b)
motion for reconsideration, we lack jurisdiction to review the merits of the district court’s
original judgment of dismissal. See Malik v. McGinnis, 293 F.3d 559, 561 (2d Cir. 2002) (“An
appeal from an order denying a [motion for reconsideration] brings up for review only the denial
of the motion and not the merits of the underlying judgment.” (internal quotation marks and
alteration omitted)). Accordingly, we do not address Massop’s challenges to the merits of the
district court’s judgment.
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“The decision whether to grant a party’s Rule 60(b) motion is committed to the sound
discretion of the district court, and appellate review is confined to determining whether the
district court abused that discretion.” Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012) (internal
quotation marks omitted). “A district court has abused its discretion if it has (1) based its ruling
on an erroneous view of the law, (2) made a clearly erroneous assessment of the evidence, or (3)
rendered a decision that cannot be located within the range of permissible decisions.” Lynch v.
City of New York, 589 F.3d 94, 99 (2d Cir. 2009) (internal quotation marks and citations
omitted). A Rule 60(b) motion may not be used “as a substitute for an appeal [a party] failed to
take in a timely fashion.” Stevens, 676 F.3d at 67. “The standard for granting [a motion for
reconsideration] is strict, and reconsideration will generally be denied unless the moving party
can point to controlling decisions or data that the court overlooked . . . that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). Moreover, such a motion will not be granted absent the demonstration
of “extraordinary circumstances.” See Stevens, 676 F.3d at 67 (internal quotation marks
omitted).
We conclude that the district court did not abuse its discretion in denying Massop’s
motion for reconsideration. As the court correctly noted, Massop did not provide the court with
any controlling case law or data that it had overlooked, nor did she allege facts demonstrating
extraordinary circumstances warranting relief from the judgment of dismissal. Additionally, if
the motion were construed as one brought pursuant to Rule 60(b)(1) (allowing for relief from
judgment based on, inter alia, “mistake,” including judicial mistake), it would have been
untimely. See Int’l Controls Corp. v. Vesco, 556 F.2d 665, 670 (2d Cir. 1977). Finally, to the
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extent Massop was using the motion for reconsideration to challenge the merits of the district
court’s judgment, she was improperly using the motion as a substitute for appeal. See Stevens,
676 F.3d at 67.
Massop’s arguments on appeal do not affect our conclusion. First, we find Massop’s
challenge to the district court’s construction of her “Rule 60(a)” motion as a Rule 60(b) motion
to be without merit for substantially the same reasons stated by the district court in its November
2011 decision. To the extent that her arguments can be construed as a challenge to the district
court’s denial of her motion for an extension of time to file her appeal from the original
judgment, we lack jurisdiction to review the district court’s denial of that motion, as Massop did
not file a notice of appeal from the denial of that motion. See Fed. R. App. P. 3(c)(1)(B);
Gonzalez v. Thaler, 132 S. Ct. 641, 651-52 (2012).
We have considered Massop’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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