     Case: 13-60168       Document: 00512440915         Page: 1     Date Filed: 11/14/2013




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

                                                                            FILED
                                                                        November 14, 2013

                                     No. 13-60168                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



GARY D. HOUSE; JOYCE PHILLIPS; WILSON CARTER, III; CLARENCE
M. WASHINGTON

                                                  Plaintiffs-Appellants
v.

HUNTINGTON INGALLS, INCORPORATED, a/k/a Northrum Grumman
Shipbuilding, Inc.

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:10-CV-565


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Before the Court is the appeal of a denial of a 60(b)(3) motion for relief.
Appellants argue that the court erred in applying the “mandate rule” to a
dispositive question in the motion, and that the court abused its discretion in
finding insufficient evidence to justify relief under 60(b)(3). Finding no error or
abuse of discretion, we affirm.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-60168


      I. Background
      Appellants are a group of African-American students who, in early 2009,
were each enrolled in a work-study program offered by Mississippi Gulf Coast
Community College (“MGCCC”) in conjunction with Huntington Ingalls, Inc.
(“Huntington”). The program required participants to work as apprentices at a
Huntington shipyard and to complete certain drafting courses offered by
MGCCC. On May 7, 2009, the four students were dismissed from the program
and terminated from their shipyard positions after Professor Scott Palmer
reported that the students had cheated on an assigned project. It is unclear
whether the four students ever denied the allegations of cheating, and one
actually admitted to MGCCC administrators that he had shared his assignment
with the others.
      The students, however, suspected that they had been dismissed on account
of their race, and filed an employment discrimination suit against Huntington.
In March of 2012, the district court granted Huntington’s motion for summary
judgment, finding no evidence to support the students’ claims. The students
appealed the judgment, arguing that Professor Palmer’s grade book had been
fraudulently altered and that Palmer should have been more forthcoming about
his status as a Huntington employee. In an opinion dated October 1, 2012, this
Court affirmed summary judgment and pointed out that any allegations of
misconduct are properly brought in a Rule 60(b) motion before the district court.
The students retained new counsel to file the motion, which the district court
ultimately denied. The students now timely appeal the denial of that motion.


      II. Discussion
      The students first argue that the district court erred in suggesting that the
“mandate rule” precluded that court from considering whether misconduct or

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                                   No. 13-60168

fraud existed such that 60(b)(3) relief is appropriate.       The mandate rule
“prohibits a district court on remand from re-examining an issue of law or fact
previously decided on appeal and not submitted to the trial court on remand.”
United States v. Teel, 691 F.3d 578, 583 (5th Cir. 2012) (citation omitted). We
review a court’s application of the mandate rule de novo. United States v.
Elizondo, 475 F.3d 692, 695 (5th Cir. 2007).
      Here, the district court suggested that the mandate rule might “operate[]
to bar [the students] from obtaining the relief they seek,” because in affirming
summary judgment we expressed skepticism that the students had identified
any “material ‘fraud’ in the process.” House v. Huntington Ingalls, Inc., 482 Fed.
App’x 937, 938 (5th Cir. 2012). The district court, however, ultimately assumed
that the mandate rule did not apply, and then fully considered and rejected the
merits of the students’ motion. So, regardless of whether the mandate rule
properly applied, the students’ argument here is of no consequence. See Becker
v. Tidewater, Inc., 586 F.3d 358, 368 n.8 (5th Cir. 2009) (noting that this Court
“need not address” whether an argument is barred by the mandate rule where
the same argument has been properly “rejected on the merits”); see also
discussion of the merits, infra.
      The students also argue that the denial of the 60(b)(3) motion was an
abuse of the district court’s discretion.    Rule 60(b)(3) permits relief from
judgment where there has been fraud, misrepresentation, or misconduct by the
opposing party. Fed. R. Civ. P. 60(b)(3). The party seeking relief must show
that the adverse party engaged in fraud or misconduct that prevented the
moving party from fully and fairly presenting his case. Hesling v. CSX Transp.,
Inc., 396 F.3d 632, 641 (5th Cir. 2005). Such a showing must be made by clear
and convincing evidence. Id.
      We review a district court’s denial of a Rule 60(b) motion only for abuse of
discretion. Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, Inc., 62 F.3d 767,

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770 (5th Cir. 1995). Under this highly deferential standard, “[i]t is not enough
that the granting of relief might have been permissible, or even warranted”
under the facts. Northshore Dev., Inc. v. Lee, 835 F.2d 580, 582 (5th Cir. 1988).
Rather, for us to find abuse of discretion, the denial must truly have been
“unwarranted.” Id.
       Here, the court was simply not persuaded by the students’ concerns about
purportedly fraudulent alterations in the grade book and about Palmer’s status
as a Huntington employee. In fact, the record indicates that the grade book
alteration was far from attempted fraud, but was logically necessary in order for
Palmer to enter the requisite penalty grades after the academic dishonesty was
discovered. Morever, the district court emphasized that the facts underlying all
of the students’ concerns were available to the students before the case was
dismissed. Therefore, there is no evidence that the grade book or Palmer’s
employment status prevented the students from “fairly presenting” their case,
as required for relief to be granted. The district court thus accurately described
the evidence as inadequate to satisfy the Rule 60(b)(3) clear and convincing
standard. Accordingly, we find no abuse of discretion.1


       III. Conclusion
       Finding no error or abuse of discretion, we therefore AFFIRM the district
court’s denial of the Rule 60(b) motion.




       1
        The students may have also requested relief under Rule 60(b)(6), which allows a court
to vacate a judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). It is
established, however, that such relief may be requested only where not “not explicitly
authorized by earlier sections of the Rule.” Fed. Deposit Ins. Corp. v. Yancey Camp Dev., 889
F.2d 647, 649 (5th Cir. 1989). Here, relief is requested due to allegations of misconduct or
fraud. Such relief is authorized by 60(b)(3), and is therefore not available under 60(b)(6).

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