United States v. Virginia Russell

Appellant’s notice of appeal was filed six days after entry of the order denying appellant’s motion to set aside the default judgment, but 63 days after entry of the default judgment itself. In a civil case in which the United States is a party, the notice of appeal must be filed within 60 days of judgment unless the period is tolled by the filing of an appropriate motion under Federal Rules of Civil Procedure 50(b), 52(b), or 59. Fed.R.App.P. 4(a). Appellant’s motion to vacate judgment pursuant to Rule 60(b) did not toll the 60-day period. The appeal was therefore untimely as to the underlying default judgment. The only question open to review is whether the district court abused its discretion in denying appellant’s Rule 60(b) motion. Browder v. Director, Department of Corrections, 434 U.S. 257, 263 , 98 S.Ct. 556 , 560 n. 7, 54 L.Ed.2d 521 (1978).

“An order denying relief under Rule 60(b) is an appealable order, but the appeal brings up only the correctness of the order itself. It does not permit the appellant to attack the underlying judgment for error that could have been complained of on direct appeal. Moreover, the denial of a motion to vacate will be reversed only upon a…