           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           April 29, 2008

                                     No. 07-10597                     Charles R. Fulbruge III
                                   Summary Calender                           Clerk


TERRY L SMITH, SR

                                                  Plaintiff - Appellant
v.

US POSTAL SERVICE

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 3:93-CV-1509


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       The United States Postal Service (“USPS”) employed Terry Smith
(“Smith”) as a custodian from 1984 to 1992. Smith was dismissed for absence
without leave and failure to perform the duties of his position. Smith appealed
the dismissal to the Merit Systems Protection Board, which affirmed his
discharge. In 1993, Smith filed a pro se complaint against USPS seeking $75
million in damages based on “service-connected disabilities” caused by the USPS


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                          No. 07-10597

during his employment. Throughout the litigation, the defendant and the courts
interpreted Smith’s complaint as seeking relief for employment discrimination
pursuant to Title VII, and Smith never challenged this interpretation. The only
correct party of suit in a Title VII employment discrimination claim against the
USPS is the Postmaster General. See 42 U.S.C. § 2000e-16(c); Montgomery v.
U.S. Postal Serv., 867 F.2d 900, 902 (5th Cir. 1989). Smith filed suit against the
USPS and never sought to amend his pleading. In February 1995, the district
court granted USPS’s Rule 12(b)(6) motion because Smith failed to name the
proper party as defendant and entered a judgment dismissing Smith’s suit with
prejudice.
       Eleven years later, in June 2006,1 Plaintiff filed a “Motion to Revisit,
Reverse, or Relief,” concerning the dismissal of his employment discrimination
suit against USPS. The district court properly treated the motion as a motion
for relief from judgment under FED. R. CIV. P. 60(b). In his motion, Smith
alleged that newly discovered documents show discrepancies between some of
his time sheets and the evidence presented against him to justify his dismissal.
He claimed that some of the documents presented to the Merit Systems
Protection Board were fraudulent. Smith also continued to claim that he was
discriminated against based on a physical disability. His motion did not address
the reason why his suit was originally dismissed: failure to name the correct
party. The district court denied his motion, finding it to be time barred. Even
assuming the motion was timely, the district court found that Smith failed to
show that the new evidence presented was not discoverable through due
diligence, or that it would have produced a different result.
       We review the district court’s denial of a Rule 60(b) motion for an abuse
of discretion. See Warfield v. Byron, 436 F.3d 551, 556 (5th Cir. 2006). “To


       1
          Smith also filed a motion in February 2007, but the motion raises identical arguments to that
filed in June 2006.

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overturn the district court’s denial . . . it is not enough that a grant of the motion
might have been permissible or warranted; rather, the decision to deny the
motion must have been sufficiently unwarranted as to amount to an abuse of
discretion.” Id.
          Rule 60(b) permits a losing party to seek relief from a judgment under a
limited set of circumstances and within a limited period of time. Motions based
on newly discovered evidence or fraud, reasons specifically identified in
subsections 60(b)(2) and (b)(3), must be brought within one year of the final
judgment. See FED. R. CIV. PROC. 60(c). Rule 60(b)(6) is a catch-all provision,
allowing relief from a judgment for “any other reason that justifies relief.” FED.
R. CIV. P. 60(b)(6). A motion seeking relief under Rule 60(b)(6) need only be
brought “within a reasonable time.” However, the relief under Rule 60(b)(6) is
not available if the motion is premised upon an enumerated ground found in
clauses (1) through (5). See Liljeberg v. Health Serv’s. Acquisition Corp., 486
U.S. 847, 863 n. 11 (1988) (noting that clause (6) is mutually exclusive of clauses
(1)-(5)). Smith’s motion requested relief based on allegations of fraud and newly
discovered evidence, specifically enumerated grounds under Rule 60(b)(2) and
(b)(3).     Therefore his motion was required to be filed within one year of
judgment. The district court did not abuse its discretion in finding Smith’s Rule
60(b) motion, filed some eleven years after judgment, to be untimely.
          Accordingly, we AFFIRM the judgment of the district court.




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