     Case: 17-50521      Document: 00514502284         Page: 1    Date Filed: 06/06/2018




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

                                                                                 FILED
                                       No. 17-50521                           June 6, 2018
                                                                            Lyle W. Cayce
RICHARD SERNA,                                                                   Clerk


              Plaintiff - Appellant

v.

MEGAN J. BRENNAN, United States Postmaster General,

              Defendant - Appellee




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:15-CV-198


Before CLEMENT, HIGGINSON, and HO, Circuit Judges.
PER CURIAM:*
       Richard Serna, a former mail processor clerk for the United States Postal
Service, filed an employment discrimination action in March 2015. In it, he
alleged violations of Title VII of the Civil Rights Act of 1964, the Rehabilitation
Act of 1973, and the Age Discrimination in Employment Act of 1967. The
district    court    accepted    the     magistrate     judge’s    memorandum                 and
recommendation (M&R) that the USPS’s motion to dismiss be granted on all


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-50521
claims. Serna neither filed any objections to the M&R nor directly appealed
the district court’s judgment. On January 19, 2017, two days before the one-
year anniversary of the district court’s judgment, Serna filed a motion for
reconsideration pursuant to Federal Rule of Civil Procedure 60(b). Serna now
appeals the district court’s subsequent denial of that Rule 60(b) motion.
Because the district court correctly deemed that Serna failed to meet the
requirements for this “extraordinary remedy,” we affirm. In re Pettle, 410 F.3d
189, 191 (5th Cir. 2005) (quoting Carter v. Fenner, 136 F.3d 1000, 1007 (5th
Cir. 1998)).
      We review a denial of a Rule 60(b) motion for abuse of discretion. Id. “A
district court abuses its discretion if it bases its decision on an erroneous view
of the law or on a clearly erroneous assessment of the evidence.” United States
v. Fernandez, 797 F.3d 315, 318 (5th Cir. 2015) (quoting Hesling v. CSX
Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005)). Furthermore, because Serna’s
brief solely addressed his Rehabilitation Act claim, that is the only claim we
now consider on appeal. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
      The primary basis of Serna’s Rule 60(b) motion was his discovery of
alleged “new evidence”—namely, that “[o]n or about June 9, 2016 Sterling
Ricks, Vice-President [of the American Postal Workers Union] Local 0195
confirmed there is no CBA provision requiring the Plaintiff to file his
discrimination disability claims as a union grievance.” Under Rule 60(b)(2), a
court may relieve a party from a final judgment due to “newly discovered
evidence that, with reasonable 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). Holding
aside the dubious notion that this alleged “new evidence” could not have been
discovered in time for Serna to file a Rule 59(b) motion, the district court
properly rejected this “new evidence” as inadmissible hearsay. Furthermore,
even if it were not hearsay, the magistrate judge and district court properly
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                                     No. 17-50521
viewed this issue as being foreclosed by this Court’s clear ruling in Gilbert v.
Donahoe, 751 F.3d 303 (5th Cir. 2014). Gilbert similarly involved a claim about
the treatment of the Rehabilitation Act in the collective bargaining agreement
between the USPS and the American Postal Workers Union. In Gilbert, we
held that “the [collective bargaining agreement] requires [a plaintiff] to pursue
her Rehabilitation Act claims through the specified grievance and arbitration
procedures.” Id. at 310. The district court did not clearly err in concluding
that Gilbert, a binding case in this Court, still applies, notwithstanding the
inadmissible hearsay forming the basis of Serna’s delayed Rule 60(b) motion
filing.
          We are also persuaded that the district court did not abuse its discretion
in denying Serna’s Rule 60(b) motion on the Rule 60(b)(1) grounds that there
was no “mistake, inadvertence, surprise, or excusable neglect” in this
litigation. FED. R. CIV. P. 60(b)(1). Serna failed to object to the M&R, and he
failed to appeal the district court’s judgment. If Serna objects to the way the
American Postal Workers Union handled his Rehabilitation Act grievance
claim, he may have a cause of action against the Union. But that has no
bearing on this Rule 60(b) motion to reopen his case against the USPS.
          Finally, we are similarly persuaded that the district court did not abuse
its discretion in denying Serna’s Rule 60(b) motion on the Rule 60(b)(3) grounds
that he failed to establish “fraud . . . , misrepresentation, or misconduct by an
opposing party.” FED. R. CIV. P. 60(b)(3). There was plainly no fraud or
misconduct by the USPS in moving to dismiss Serna’s claim under Rules
12(b)(1) and 12(b)(6)—relying in part on its argument that the district court
lacked jurisdiction over Serna’s Rehabilitation Act claim under Gilbert.
          Therefore, the district court’s judgment is AFFIRMED.




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