                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-1974


MICHAEL J. HALE, d/b/a Data Base Technologies,

                  Plaintiff - Appellant,

             v.

BELTON ASSOCIATES, INCORPORATED,

                  Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cv-00099-GBL)


Submitted:    December 17, 2008             Decided:   January 9, 2009


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John P. Forest, II, STAHL, FOREST & ZELLOE, P.C., Fairfax,
Virginia, for Appellant.    Aleksander Lamvol, SHEPPARD, MULLIN,
RICHTER & HAMPTON, LLP, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Michael      Hale    appeals       the    district        court’s        order

denying relief on his motion filed pursuant to Fed. R. Civ. P.

60(a), (b).    Finding no abuse of discretion, we affirm.

            Final judgment in this breach of contract case was

entered on July 26, 2006.             Hale did not appeal.             He filed his

Rule 60 motion on July 23, 2007--almost one year later.                             In the

motion, Hale contended that the district court had failed to

rule on his claim that he was not given reasonable notice prior

to termination of an employment contract.                      At the hearing on

Hale’s   motion,   the    district     court     inquired      why     Hale    had     not

appealed following entry of final judgment.                          Hale’s attorney

replied, “[W]e honestly just lost track of that.”

            Because    the      claimed       error   was      not     of     the     sort

contemplated by Rule 60(a), see In re: Walter, 282 F.3d 434,

440-41 (6th Cir. 2002), Hale’s motion more appropriately falls

under Rule 60(b).          To support a motion under Rule 60(b), a

movant must show “timeliness, a meritorious defense, a lack of

unfair   prejudice       to     the   opposing        party,     and        exceptional

circumstances.”       Dowell v. State Farm Fire & Cas. Auto. Ins.

Co., 993 F.2d 46, 48 (4th Cir. 1993) (internal quotation marks

omitted).

            We review the denial of a Rule 60(b) motion for abuse

of discretion.     MLC Auto. v. Town of S. Pines, 532 F.3d 269, 277

                                          2
(4th Cir. 2008).     We do “not review the merits of the underlying

order, [but rather] only review the denial of the motion with

respect to the grounds set forth in Rule 60(b).”                             Id.     It is

well established that “a Rule 60(b) motion seeking relief from a

final   judgment   is   not     a   substitute       for    a     timely       and   proper

appeal.”    Dowell,      993    F.2d    at    48.         Thus,    if    a    Rule    60(b)

movant’s   failure      to     appeal   is     the    result        of       “inexcusable

negligence” or “a considered choice” not to appeal, relief under

the Rule is unavailable.            See Ackermann v. United States, 340

U.S. 193, 198, 202 (1950).

           Here, there was no abuse of discretion.                              Under the

cited authorities, Hale’s negligent failure to note a timely

appeal from the district court’s final order precluded relief

under Rule 60(b).       This case simply does not present exceptional

circumstances that would entitle Hale to relief.

           Accordingly,        we   affirm.         The    request       for    sanctions

under Fed. R. App. P. 38 is denied.                        We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                                   AFFIRMED




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