Srinivasan v. Snow , 211 F. App'x 186 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2394
NARAYANA I. SRINIVASAN,
Plaintiff - Appellant,
versus
JOHN SNOW, Secretary, United States Department
of Treasury,
Defendant - Appellee.
---------------------------------------------
VIRGINIA TRIAL LAWYERS ASSOCIATION,
Amicus Supporting Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-05-
127-PJM)
Argued: November 30, 2006 Decided: December 28, 2006
Before MOTZ and DUNCAN, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
ARGUED: Nicholas Wyckoff Woodfield, EMPLOYMENT LAW GROUP, P.C.,
Washington, D.C., for Appellant. Ariana Wright Arnold, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: R. Scott Oswald, EMPLOYMENT LAW GROUP, P.C., Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee. John E. Davidson, DAVIDSON &
KITZMAN, Charlottesville, Virginia, for Virginia Trial Lawyers
Association, Amicus Supporting Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Narayana I. Srinivasan appeals the grant of summary judgment
to the Internal Revenue Service (“IRS”) on his claims that the IRS
discriminated against him because of national origin and religion
and retaliated against him for filing an Equal Employment
Opportunity Commission (“EEOC”) complaint, in violation of 42
U.S.C. § 2000e et seq. Srinivasan also appeals the denial of his
motion under Federal Rule of Civil Procedure 56(f) to stay
consideration of the summary judgment motion in order to permit
discovery, and the denial of his motion for reconsideration after
summary judgment had been entered. We dismiss in part and affirm
in part.
I.
Srinivasan is a 64-year old United States citizen of Indian
origin who began working at the IRS in 1995 as a Senior Technical
Advisor. He alleges that between 1996 and 2001, his superiors at
the IRS harassed him and took adverse employment actions against
him because of his national origin and religion, and that they
retaliated against him for filing an EEOC complaint. As a result
of the alleged harassment, Srinivasan resigned on September 10,
2001. He subsequently filed a complaint under Title VII, alleging
(1) discrimination and constructive discharge, (2) a hostile work
environment, and (3) retaliation.
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The IRS moved to dismiss or, in the alternative, for summary
judgment. Srinivasan filed an opposition to this motion as well as
a request to stay consideration of the IRS’s motion in order to
permit discovery pursuant to Rule 56(f). The district court denied
Srinivasan’s motion to stay and subsequently granted summary
judgment to the IRS on July 7, 2005. At the summary judgment
hearing held that day the district court stated: “I will give the
plaintiff [the] opportunity, to file within 30 days a motion to
reconsider. I’m extending the time to file the Motion to
Reconsider.”
At the request of Srinivasan’s attorney, the court clarified
the nature of the Motion to Reconsider:
If there is something new and different that could not
have been adduced to the Court, whatever the standards
for the Motion to Reconsider, I’ll entertain it on that
basis. But I’m not saying . . . you will have another
chance to file your Motion for Summary Judgment in 30
days. If that were so, I would say I’m not going to
decide the issues for another 30 days . . . Right now the
Court is entering an Order of Summary Judgment in favor
of the defendant.
In the order granting summary judgment to the IRS, the court
similarly included the following language: “Plaintiff shall have
LEAVE to file, within thirty (30) days from today, a Motion to
Reconsider the Court’s Order herein.”
Srinivasan filed a “Motion for Reconsideration” on August 5,
2006. After concluding that Srinivasan failed to provide the court
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with new material that warranted reopening his case, the district
court denied that motion on November 28, 2005.
Srinivasan filed a notice of appeal on December 5, 2006,
attempting to appeal orders: (1) denying the Rule 56(f) motion, (2)
granting summary judgment to the IRS, and (3) denying the motion
for reconsideration.
II.
The IRS contends that Srinivasan did not timely appeal the
district court’s orders denying his Rule 56(f) motion and granting
summary judgment to the IRS; Srinivasan contends that these appeals
were timely.
If the government is a party to the case, Federal Rule of
Appellate Procedure 4(a)(1)(B) grants both parties 60 days to file
an appeal. If a party does not note a timely appeal, we lack
jurisdiction to hear the case. See Browder v. Dir., Dep’t of Corr.
of Ill., 434 U.S. 257, 264 (1978) (holding that the time limits in
Rule 4(a) are “mandatory and jurisdictional”). The district court
granted summary judgment to the IRS on July 7, 2005. Srinivasan
had 60 days from that date to file a notice of appeal. He did not
file the notice of appeal until December 5, 2006, well after the
60-day deadline. Accordingly, Srinivasan’s appeal of the order
granting summary judgment, and of the underlying order denying his
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Rule 56(f) motion, is not timely and we lack jurisdiction to
consider these orders.*
Srinivasan claims that his appeal is nonetheless timely
because the district court’s judgment was not final until it denied
his motion for reconsideration on November 28, 2005. Although the
district court set forth its order granting summary judgment on a
separate document, as is required under Fed.R.Civ.P. 58(a),
Srinivasan contends that the court did not intend for the order to
be final because it included in the order the words “[p]laintiff
shall have LEAVE to file, within thirty (30) days from today, a
Motion to Reconsider the Court’s Order herein.”
*
If Srinivasan had filed his motion for reconsideration within
10 days after the district court entered its order granting summary
judgment, then the appeals period would have been tolled until the
district court had denied the motion for reconsideration. See
Fed.R.App.P. 4(a)(4)(A). Srinivasan filed his motion for
reconsideration 30, rather than 10, days after the district court
entered its order; thus, his motion for reconsideration did not
toll the time for filing a notice of appeal. Srinivasan seemingly
relied on the district court’s order granting him leave to file a
motion to reconsider within 30, rather than 10, days. However, a
district court has no authority to extend the time for filing such
motions, because the time limits are jurisdictional. See Alston v.
MCI Commc’ns, Corp., 84 F.3d 705, 706 (4th Cir. 1996)(holding that
the district court there “was without power to enlarge the time
period for filing a Rule 59(e) motion” (citing Fed.R.Civ.P. 6(b)
(“[The district court] may not extend the time for taking any
action under Rules 59(b), (d), and (e), [and] 60(b) . . . .”)). We
note that in limited situations, the Supreme Court’s “unique
circumstances” doctrine may save the otherwise untimely appeal of
a party who relied on a district court’s assurances that his appeal
would be timely. See Thompson v. INS, 375 U.S. 384 (1964);
Panhorst v. United States, 241 F.3d 367 (4th Cir. 2001).
Srinivasan waived this argument by not raising it in his briefs.
Accordingly, we do not consider whether the limited reach of the
unique circumstances doctrine applies to this case.
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Srinivasan rests his argument on Bankers Trust Co. v. Mallis,
435 U.S. 381 (1978), which discusses the Rule 58(a) requirement
that a separate document set forth a final judgment. In Bankers
Trust, although the district court had failed to do this, the
Supreme Court nonetheless concluded that the judgment was final
because the court “clearly evidenced its intent that the opinion
and order from which an appeal was taken would represent the final
decision in the case,” and “the petitioner did not object to the
taking of the appeal in the absence of a separate judgment.” Id.
at 387-88. Bankers Trust thus stands for the proposition that when
a district court intends a judgment to be final, and simply fails
to create a separate document setting forth that judgment, a party
can rely on the intent of the court to make the judgment final.
Srinivasan does not cite, however, nor have we found, cases
that suggest the converse -- that even when a district court
creates a separate document with a final order, we can conclude
that the order was not final based on the court’s indication that
the parties could file a motion for reconsideration. Even if we
did conclude that we could look at the district court’s intent, in
this case the court clearly intended its order to be final. The
court stated at the summary judgment hearing:
I’m not saying . . . you will have another chance to file
your Motion for Summary judgment in 30 days. If that
were so, I would say I’m not going to decide the issues
for another 30 days. So that, understand that, this is
a Motion to Reconsider. Right now the Court is entering
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an Order of Summary Judgment in favor of the defendant.
The district court made clear to the parties that it was not
delaying the entry of a final order when it gave Srinivasan leave
to file a motion to reconsider within 30 days. As such, the
district court’s order of July 7, 2005 was final, and Srinivasan
failed to file a timely notice of appeal when he did not do so
within 60 days. For these reasons, we must dismiss for lack of
jurisdiction Srinivasan’s appeal of the orders denying his Rule
56(f) motion and granting summary judgment to the IRS.
III.
We do have jurisdiction to hear Srinivasan’s appeal of the
order denying his motion for reconsideration.
Srinivasan filed this motion without specifying which Federal
Rule of Civil Procedure provided authority for it. Although the
district court considered the motion under Fed.R.Civ.P. 59,
Srinivasan contends that the court should have viewed the motion
under Fed.R.Civ.P. 56(e) as a supplemental filing. Srinivasan
rests his argument on the district court’s statement that “the
plaintiff will have leave to file a Motion to Reconsider . . . .”
Under Rule 56(e), a court “may permit affidavits to be
supplemented or opposed by depositions, answers to interrogatories,
or further affidavits.” (emphasis added). Thus, a court must give
parties permission to file a Rule 56(e) motion, whereas a party
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does not need permission to file a Rule 59 motion. According to
Srinivasan, the fact that the court granted him “leave” to file the
motion means that the motion must have been a Rule 56(e), rather
than a Rule 59, motion. The district court’s explanation at the
summary judgment hearing, however, does not permit that argument.
There the court explained that it was “not saying . . you will have
another chance to file your Motion for Summary Judgment . . . . “
Rather, the district court told Srinivasan it would only consider
something “new and different” under “the standards for the Motion
to Reconsider.”
The district court did not err in refusing to view
Srinivasan’s motion as a Rule 56(e) motion to supplement the
summary judgment record. See Cray Commc’ns, Inc. v. Novatel
Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994) (holding that
district court did not abuse its discretion in failing to consider
affidavits and exhibits offered to supplement the record after
summary judgment was entered); RGI, Inc. v. Unified Industries,
Inc., 963 F.2d 658, 662 (4th Cir. 1992) (holding that a party could
not supplement its pleadings under Rule 56 after summary judgment
had been entered, but that a party could submit a Rule 59 motion to
the court after summary judgment had been entered if the movant had
material unavailable to it previously).
However, we believe that the district court did err in
considering the motion under Rule 59. In order to be timely, a
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Rule 59 motion must be filed no later than 10 days after entry of
judgment. See Fed.R.Civ.P. 59(e). Because Srinivasan filed his
motion 30 days after entry of judgment, he did not file a timely
Rule 59 motion. Rather than concluding that the motion was
jurisdictionally time-barred, however, it seems more appropriate
given the facts of this case to consider the motion as a
Fed.R.Civ.P. 60(b) motion. See In re Burnley, 988 F.2d 1, 2 (4th
Cir. 1993)(explaining that “where a party submits a [subsequent]
motion . . . which is unnamed and does not refer to a specific
Federal Rule of Civil Procedure, the courts have considered that
motion either a Rule 59(e) motion to alter or amend a judgment, or
a Rule 60(b) motion for relief from a judgment or order”).
Indeed, Rule 60(b) explicitly allows the filing of a motion
under the precise circumstances envisioned by the district court,
i.e. when a party has “newly discovered evidence which by due
diligence could not have been discovered in time to move for a new
trial under Rule 59 (b).” Fed.R.Civ.P. 60(b)(2). Because Rule 60
allows a party up to one year to file a motion, Srinivasan’s
“Motion for Reconsideration” can be properly considered under Rule
60(b). This allows us to review the merits of Srinivasan’s appeal
of the denial of his “Motion for Reconsideration.” But of course
it has no substantive effect on our deliberations, because on
appeal we apply the same standard of review to Rule 59 and Rule 60
motions. See Boryan v. United States, 884 F.2d 767, 771 (4th Cir.
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1989) (citing United States Fidelity & Guaranty Co. v. Lawrenson,
334 F.2d 464, 475 n.2 (4th Cir.), cert. denied, 379 U.S. 869 (1964))
(holding that the standard governing relief on the basis of newly
discovered evidence under Rule 59 or Rule 60 is the same).
That standard is abuse of discretion. In re Burnley, 988 F.2d
at 3. “[I]n order to support a motion for reconsideration, the
movant is obliged to show not only that this evidence was newly
discovered or unknown to it until after the hearing, but also that
it could not with reasonable diligence have discovered and produced
such evidence at the hearing.” Boryan, 884 F.2d at 771 (citations
and quotation marks omitted). The district court concluded that
Srinivasan had not met this burden.
In support of his motion, Srinivasan submitted three
affidavits of co-workers, each of which had been prepared prior to
the summary judgment hearing. The only new material Srinivasan
submitted was an affidavit prepared by Srinivasan himself and a
portion of Srinivasan’s deposition testimony. As the district
court correctly noted, that information was surely available to
Srinivasan at the time of the summary judgment hearing, since it
came from his own mouth. Under these circumstances, we must hold
that the court did not abuse its discretion in concluding that
Srinivasan had failed to provide “newly discovered” evidence in
support of his motion for reconsideration. Accordingly, we affirm
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the district court’s denial of Srinivasan’s motion for
reconsideration.
IV.
For the foregoing reasons, we dismiss as untimely Srinivasan’s
appeal from the district court orders denying his Rule 56(f) motion
and granting summary judgment to the IRS, and affirm the district
court’s order denying Srinivasan’s motion for reconsideration.
DISMISSED IN PART AND AFFIRMED IN PART
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