Silk v. Sandoval, 7769.

Citation435 F.2d 1266
Decision Date06 January 1971
Docket NumberNo. 7769.,7769.
PartiesBeatrice SILK, Plaintiff, Appellant, v. Hilary SANDOVAL et al., Defendants, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Beatrice Silk pro se, on motion for summary action.

Herbert F. Travers, Jr., U. S. Atty., and Wayne B. Hollingsworth, Asst. U. S. Atty., on motion for summary disposition.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

Plaintiff filed a complaint in the district court alleging loss of her employment due to unlawful action by defendant government employees. Defendants moved to dismiss on various grounds, and on July 8, 1970, the court dismissed an amended complaint on a ground not here relevant. There was a further hearing on July 16, and on July 21 the court affirmed its earlier dismissal. On July 31, within the ten days permitted by F.R.Civ.P. 59(e), the plaintiff moved to vacate the order of dismissal. The court vacated that order by entering a new one dated August 12, dismissing not on the merits, but on the ground that indispensable parties had not been joined. On September 9 the plaintiff moved to vacate the dismissal of August 12. The court denied the motion on October 15. On November 12 the plaintiff filed a notice of appeal from the order of October 15. Defendants move to dismiss the appeal for want of appellate jurisdiction, asserting untimeliness of the September 9 motion.

The September 9 motion to vacate, if construed as a second Rule 59(e) motion, was not timely, and hence did not stay the running of the period in which appeal could be taken from the August 12 order. F.R.A.P. 4(a). The order was, accordingly, no longer appealable when the notice of appeal was filed on November 12, and, indeed, the notice was expressly limited to the order of October 15. As to that order the notice was timely, and the appeal cannot be dismissed, as defendants would have it, for want of jurisdiction.

We turn to a consideration of the merit, if any, of the appeal from the October 15 order. Plaintiff did not specify under what rule she was proceeding. If the September 9 motion is construed as one brought under Rule 59(e) it was subject to summary dismissal as untimely. Plaintiff can avoid that result only if the motion was also maintainable under F.R.Civ.P. 60. Motions under this rule need be made only "within a reasonable time," subject to a one-year limitation in some cases.

The only possibly applicable provision of Rule 60 is subsection (b) which provides for relief from "mistake, inadvertence, surprise, or excusable neglect." Professor Moore would construe a motion which, like the one at bar, merely seeks reconsideration of a point of law, as fitting this description. 7 J. Moore, Federal Practice ¶ 60.223 (2d ed. 1970). His pronouncement has produced some converts. See Meadows v. Cohen, 5 Cir., 1969, 409 F.2d 750, 752; McDowell v. Celebrezze, 5 Cir., 1962, 310 F.2d 43; cf. Gila River Ranch, Inc. v. United States, 9 Cir., 1966, 368 F.2d 354; but see Swam v. United States, 1966, 7 Cir., 1964, 327 F.2d 431, cert. denied 379 U.S. 852, 85 S.Ct. 98, 13 L.Ed. 2d 55. It has also apparently given rise to some disquietude. Hoffman v. Celebrezze, 8 Cir., 1969, 405 F.2d 833; Schildhaus v. Moe, 2 Cir., 1964, 335 F.2d 529. We neither understand the basis for this interpretation, nor sympathize with it. If the court merely wrongly decides a point of law, that is not "inadvertence, surprise, or excusable neglect." Moreover, these words, in the context of the rule, seem addressed to some special situations justifying extraordinary relief. Plaintiff's motion is based on the broad ground that the court made an erroneous ruling, not that the mistake was attributable to special circumstances. We would apply the same equitable conception to "mistake" as seems implicit in the three accompanying grounds, under the principle of noscitur a sociis.

A...

To continue reading

Request your trial
79 cases
  • Browder v. Director, Department of Corrections of Illinois
    • United States
    • U.S. Supreme Court
    • January 10, 1978
    ...86 S.Ct. 1574, 16 L.Ed.2d 550 (1966). Rule 59 in particular is based on an "interest in speedy disposition and finality," Silk v. Sandoval, 435 F.2d 1266, 1268 (CA1), cert. denied, 402 U.S. 1012, 91 S.Ct. 2189, 29 L.Ed.2d 435 (1971). Although some aspects of the Federal Rules of Civil Proce......
  • Compton v. Alton S.S. Co., Inc.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • October 5, 1979
    ...1976), 542 F.2d 928; Tarkington v. United States Lines Co. (2d Cir. 1955), 222 F.2d 358.For the contrary view, See Silk v. Sandoval (1st Cir. 1971), 435 F.2d 1266, 1267, and cases cited therein. These cases assume that the proper remedy is by appeal, but where the defendant is in default, h......
  • Page v. Schweiker
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 14, 1986
    ...vitiated. Accordingly, some courts have held that legal error without more cannot be corrected under Rule 60(b). See, e.g., Silk v. Sandoval, 435 F.2d 1266, 1267-68 In denying Rule 60(b) relief, the district courthere. The Secretary argues that her 60(b)(1) motion should have been granted b......
  • Mohammadi v. Islamic Republic Iran
    • United States
    • U.S. District Court — District of Columbia
    • July 12, 2013
    ...and others to rely on the finality of judgments.” CFTC v. McGraw–Hill Cos., 403 F.Supp.2d 34, 36 (D.D.C.2005); accord Silk v. Sandoval, 435 F.2d 1266, 1268 (1st Cir.1971) (acknowledging “the complementary interest in speedy disposition and finality, clearly intended by Rule 59”). There are,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT