In the
United States Court of Appeals
For the Seventh Circuit

No. 98-4142

Cephus Bell,

Plaintiff-Appellant,

v.

Eastman Kodak Company,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 95 C 4687--Sidney I. Schenkier, Magistrate
Judge.


Argued April 6, 2000--Decided May 25, 2000



  Before Posner, Chief Judge, and Flaum and
Ripple, Circuit Judges.

  Posner, Chief Judge. The plaintiff filed
a Title VII suit in which he claimed
among other things that he had been
denied a promotion on racial grounds, on
the recommendation of his supervisor,
Kachenmeister. On March 6, 1998, the
district court (Magistrate Judge
Pallmeyer) granted summary judgment for
the defendant and dismissed the suit. The
plaintiff did not appeal but instead, on
May 1, 1998, filed a motion to reconsider
her decision. In the motion, which we
deem a Rule 60(b) motion because filed
more than 10 days after the judgment,
Helm v. Resolution Trust Corp., 43 F.3d
1163, 1166-67 (7th Cir. 1995), and which
was referred to Magistrate Judge Shenkier
when Judge Pallmeyer was promoted to
district judge, the plaintiff pointed to
evidence that he had not cited to the
district court in opposition to the
defendant’s motion--evidence showing, he
argued, that Kachenmeister’s grounds for
recommending against the promotion of the
plaintiff were pretextual. Magistrate
Judge Shenkier denied the Rule 60(b)
motion on the ground that one cannot
raise an objection to summary judgment
after it is granted when the objection
could have been made before. The
plaintiff has appealed, and the defendant
responds that the magistrate judge did
not abuse his discretion in denying the
motion, abuse of discretion being the
standard of appellate review of rulings
on such motions, Browder v. Director, 434
U.S. 257, 263 n. 7 (1978); Publicis
Communication v. True North
Communications, Inc., 206 F.3d 725, 730
(7th Cir. 2000); 11 Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure sec. 2857, p. 255
(2d ed. 1995), other than when the ground
is that the judgment sought to be vacated
is void, Fed. R. Civ. P. 60(b)(4), an
either-or kind of judgment. New York Life
Ins. Co. v. Brown, 84 F.3d 137, 142 (5th
Cir. 1996).

  Far from being an abuse of discretion,
the denial of the Rule 60(b) motion was
inevitable. The motion could not have
been granted, because it was nothing more
than the first step in an attempt to take
an untimely appeal. The appeal that the
plaintiff has taken from the denial of
the motion is in fact an untimely appeal
from the final judgment that the Rule
60(b) motion challenged, and because it
is untimely it must be dismissed.

  To explain: As the plaintiff’s briefs
make clear, and was confirmed at
argument, the only basis of the Rule
60(b) motion was the plaintiff’s belief
that Magistrate Judge Pallmeyer (as she
then was), in granting summary judgment
for the defendant, had overlooked or
misinterpreted key evidence bearing on
Kachenmeister’s evaluation of the
plaintiff’s suitability for promotion.
The plaintiff’s only quarrel with
Magistrate Judge Shenkier--the only basis
for this appeal--is the latter’s failure
to rectify his predecessor’s mistake by
granting the motion. The plaintiff thus
had tried to use Rule 60(b) to appeal a
final judgment entered by one magistrate
judge to another magistrate judge, rather
than to the court of appeals. Having
discovered his mistake he now seeks to
use an appeal from the second magistrate
judge’s order denying him relief as the
vehicle for getting the review from us
that he could have gotten had he appealed
to us from the judgment dismissing his
suit within the 30 days (from March 6,
1998) allowed for an appeal. Since the
filing of a Rule 60(b) motion does not
toll the time for filing an appeal from
the judgment challenged by the motion, it
is too late for him to appeal that
judgment. The appeal is untimely, and we
have no jurisdiction to review untimely
appeals. E.g., Browder v. Director,
supra, 434 U.S at 264; Prizevoits v.
Indiana Bell Telephone Co., 76 F.3d 132
(7th Cir. 1996).

  The parties, and Magistrate Judge
Shenkier, have misunderstood the office
and scope of Rule 60(b). The rule governs
collateral attack on a final judgment
rendered by a federal district court in a
civil case; and collateral attack,
especially in civil cases, is disfavored
because of the social interest in
expedition and finality in litigation. A
collateral attack on a final judgment is
not a permissible substitute for
appealing the judgment within the time,
standardly 30 days, for appealing the
judgment of a federal district court.
Oxxford Clothes XX, Inc. v. Expeditors
Int’l of Washington, Inc., 127 F.3d 574,
577 (7th Cir. 1997); Parke-Chapley
Construction Co. v. Cherrington, 865 F.2d
907, 915 (7th Cir. 1989); Latham v. Wells
Fargo Bank, N.A., 987 F.2d 1199, 1203-04
(5th Cir. 1993) (per curiam); 11 Wright,
Miller & Kane, supra, sec. 2851, p. 230.
The ground for setting aside a judgment
under Rule 60(b) must be something that
could not have been used to obtain a
reversal by means of a direct appeal. For
example, the judgment might be void
because thedefendant had never been made
aware of it and so had no opportunity to
challenge it by means of a direct appeal.
Fed. R. Civ. P. 60(b)(4); Central
Laborers’ Pension, Welfare & Annuity
Funds v. Griffee, 198 F.3d 642 (7th Cir.
1999); New York Life Ins. Co. v. Brown,
supra, 84 F.3d at 142-43; 11 Wright,
Miller & Kane, supra, sec. 2862, pp. 326-
27. Or the judgment might have been
obtained by a fraud that the losing party
could not have discovered in time to have
it rectified by the court of appeals on
direct appeal. Fed. R. Civ. P. 60(b)(3);
Lonsdorf v. Seefeldt, 47 F.3d 893, 898
(7th Cir. 1995); Philips Medical Systems
Int’l B.V. v. Bruetman, 8 F.3d 600, 606-
07 (7th Cir. 1993); Frederick v. Kirby
Tankships, Inc., 205 F.3d 1277, 1287
(11th Cir. 2000); 11 Wright, Miller &
Kane, supra, sec. 2860. Or newly
discovered evidence that could not have
been obtained at the time of the original
litigation may show that the judgment was
erroneous. Fed. R. Civ. P. 60(b)(2);
Publicis Communication v. True North
Communications Inc., supra, 206 F.3d at
730; Jones v. Lincoln Elec. Co., 188 F.3d
709, 732-36 (7th Cir. 1999); Schwieger v.
Farm Bureau Ins. Co., 207 F.3d 480, 487
(8th Cir. 2000); 11 Wright, Miller &
Kane, supra, sec. 2859. Or, if the
judgment was an equitable one that had
remained in effect for many years,
changed circumstances may have made it
obsolete, Fed. R. Civ. P. 60(b)(5);
Agostini v. Felton, 521 U.S. 203, 238-39
(1997); 11 Wright, Miller & Kane, supra,
sec. 2863, pp. 336-38; id. at 51-52
(Supp. 2000); obviously those changed
circumstances could not have been
presented to the appellate court in a
direct appeal from the judgment when
entered.

  We need not canvass the other possible
grounds for a Rule 60(b) motion. The
common thread is that like the ones we’ve
discussed they are grounds that could
not, in the circumstances, have been
presented in a direct appeal. That is why
a lack of subject-matter jurisdiction is
not by itself a basis for deeming a
judgment void, that is, open to
collateral attack. Durfee v. Duke, 375
U.S. 106, 116 (1963); Chicot County
Drainage District v. Baxter State Bank,
308 U.S. 371, 377 (1940); In re Factor
VIII or IX Concentrate Blood Products
Litigation, 159 F.3d 1016, 1019 (7th Cir.
1998); In re Edwards, 962 F.2d 641, 644
(7th Cir. 1992); Hernandez v. Conriv
Realty Associates, 182 F.3d 121, 123 n. 3
(2d Cir. 1999); 11 Wright, Miller & Kane,
supra, sec. 2862, p. 331. For ordinarily
that is a ground for reversal that can be
presented to the appellate court on
direct appeal. To allow a ground that can
be adequately presented in a direct
appeal to be made the basis of a
collateral attack would open the door to
untimely appeals, the spectre that this
case illustrates. The losing party could
reserve the ground until he had presented
it unsuccessfully to the district court
in the form of a Rule 60(b) motion. That
is not permitted and this means that
Judge Shenkier should not have considered
the merits of the plaintiff’s motion. He
should have dismissed it upon determining
that it presented no ground for relief
that could not have been presented by way
of an appeal from the final judgment
rendered by Judge Pallmeyer.

  The closest the plaintiff comes to
suggesting a valid basis for a collateral
attack on the judgment (and it’s not
close) is when he tells us that certain
evidence favorable to him "was not
presented when it should have been due to
the fact that the two lawyers who worked
on the case left [the law firm that
represented the plaintiff in the district
court], one during discovery and one
during the Summary Judgment period.
Plaintiff dropped [that firm] and secured
new counsel in December of 1998, to
handle this appeal." In other words, the
plaintiff is arguing ineffective
assistance of counsel, and while that is
a ground for a collateral attack on a
criminal judgment, e.g., Hernandez v.
Cowan, 200 F.3d 995 (7th Cir. 2000), it
is not a basis for collateral attack on a
civil one. Sparrow v. Heller, 116 F.3d
204, 206-07 (7th Cir. 1997); Helm v.
Resolution Trust Corp., 84 F.3d 874, 878-
79 (7th Cir. 1996); United States v. 817
N.E. 29th Drive, 175 F.3d 1304, 1311 n.
14 (11th Cir. 1999). The exclusive remedy
for legal malpractice in a civil case, as
these cases explain, is a suit for
malpractice or for breach of fiduciary
duty. The plaintiff’s appeal, therefore,
which we have recharacterized as an
attempt to take an untimely appeal from
the final judgment entered by Judge
Pallmeyer, must be dismissed with
directions that the denial of the
plaintiff’s Rule 60(b) motion be
converted to a dismissal because the
motion was outside the scope of the rule.

  It remains only to note our puzzlement
at the reassignment of this case to
Magistrate Judge Shenkier. Remember that
Judge Pallmeyer had dismissed the
plaintiff’s suit on March 6, 1998. The
motion for reconsideration was filed on
May 1 and assigned to her. A footnote in
Judge Shenkier’s order reports that on
October 30, Magistrate Judge Pallmeyer
having become District Judge Pallmeyer,
the motion to reconsider was reassigned
to him. This produced the oddity of an
Article I judicial officer reconsidering
the decision of an Article III judicial
officer. But the greater oddity (since
Pallmeyer was a magistrate judge when she
issued the rulings in question) is why
promotion from magistrate judge to
district judge should be the occasion for
reassigning long-pending motions to
reconsider the judge’s rulings. Both
types of judge are officers of the same
court, and when a magistrate judge
presides over a lawsuit with the consent
of the parties she is exercising
essentially the powers of a district
judge, so that promotion to district
judge does not alter her relation to the
case in any significant way. The powers
of federal judicial officers are given by
statute, but no statute, or principle of
federal common law, forbids a district
judge to reconsider an order that she
issued when she was a magistrate judge of
the same court. It is not as if the
motion for reconsideration had been filed
after Judge Pallmeyer’s promotion; it had
been pending before her for six months
when it was reassigned to Magistrate
Judge Shenkier.

Appeal Dismissed.
