Foxx v. Department of Navy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GEORGE J. FOXX, 
Plaintiff-Appellant,
v.
 No. 01-1268
DEPARTMENT OF THE NAVY, John H.
Dalton, Secretary,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CA-99-558-A)
Submitted: June 12, 2001
Decided: July 30, 2001
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
George J. Foxx, Appellant Pro Se. Richard Parker, Arthur Erwin Pea-
body, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 FOXX v. DEPARTMENT OF THE NAVY
OPINION
PER CURIAM:
George J. Foxx appeals from the district court’s order denying his
motion filed under Fed. R. Civ. P. 60(b), in which he sought relief
from the court’s judgment granting the Department of the Navy’s
motion for summary judgment and dismissing his employment dis-
crimination action. We have reviewed the record and the district
court’s order and find no abuse of discretion. Heyman v. M.L. Mktg.
Co., 116 F.3d 91, 94 (4th Cir. 1997) (stating standard of review).
Foxx based his motion for relief from judgment on Rule 60(b)(1),
(2), and (3). As such, the motion had to be filed not more than one
year after the entry of judgment. Fed. R. Civ. P. 60(b). The district
court entered its order dismissing the action on October 1, 1999.1
Foxx did not file his Rule 60(b) motion until January 18, 2001, more
than one year later. We therefore find that the motion was untimely
filed.2 National Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264
(4th Cir. 1993) (outlining threshold factors to filing Rule 60(b)
motion).
Accordingly, we affirm the district court’s denial of Foxx’s Rule
60(b) motion on that ground. Shafer v. Preston Mem’l Hosp. Corp.,
107 F.3d 274, 275 n.1 (4th Cir. 1997) ("We have consistently recog-
nized that we may affirm a district court’s decision on different
grounds than those employed by the district court.") (citations omit-
ted). We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
1
The order was filed on September 28, 1999.
2
Although Foxx also sought relief under Rule 60(b)(6), he may not do
so. The provisions of Rule 60(b)(1), (2), or (3) and (6) "are mutually
exclusive, and thus a party who failed to take timely action [based upon
newly discovered evidence, mistake, or fraud] may not seek relief more
than a year after the judgment by resorting to subsection (6)." Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393
(1993).