BLD-159                                                     NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ____________

                                   No. 11-1526
                                  ____________

                                RORY M. WALSH,
             individually; and as Natural Guardian of C.R.W., a minor,

                                        v.

                DR. ROBERT KRANTZ; MRS. SHARI YOUNG;
             MRS SUE CATHCART; MRS KEENEY; MRS KELLY
            HEISEY; UNKNOWN DALLASTOWN STAFF MEMBER;
              DR. STEWART WEINBERG; DALLASTOWN AREA
           SCHOOL DISTRICT; CATHY STONE; GREG ANDERSON,

                                      RORY M WALSH, individually; and as Natural
                                      Guardian of C.R.W; *S.J.W., Appellants.

* (Pursuant to Rule 12(a), F.R.A.P.)
                        __________________________________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                            (D.C. Civ. No. 07-cv-00616)
                       District Judge: Christopher C. Conner
                    __________________________________

                 Submitted on a Motion for Summary Affirmance
                                 April 7, 2011

       Present: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                          (Opinion filed: April 18, 2011)
                                 ____________

                                    OPINION
                                  ____________

PER CURIAM


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       Appellant Rory M. Walsh filed a civil action pro se in the United States District

Court for the Middle District of Pennsylvania against the Dallastown Area School

District and a number of its officials and staff members. Walsh filed the action on behalf

of himself individually and his son, C.R.W., a Dallastown Area Middle School student.

The District Court dismissed several counts in the complaint pursuant to a Rule 12(b)(6)

motion filed by the defendants. Walsh was granted leave to amend and he filed an

amended complaint adding new counts. The defendants moved to dismiss the amended

complaint, and the District Court then dismissed several more counts. Discovery ensued.

Walsh deposed several of the defendants and the defendants deposed Walsh. At the

conclusion of discovery, the remaining defendants moved for summary judgment

pursuant to Rule 56(c). After the Magistrate Judge filed a Report and Recommendation,

the District Court, in an order and judgment entered on December 18, 2009, granted the

defendants’ motion, and granted judgment in favor of the defendants.

       Walsh appealed (C.A. No. 10-1217), and, after the appeal was fully briefed, we

affirmed on July 12, 2010. Walsh then filed a petition for rehearing en banc, which we

denied, and a motion for a remand, which he then corrected. Walsh questioned whether

we had authority to rely on parts of the district court record not included in the appendix.

In denying his motion to remand, we noted that Federal Rule of Appellate Procedure

30(a)(2) permits us to review the entire district court record in determining whether to

uphold a judgment. Walsh then filed a second motion for a remand, challenging our

interpretation of the federal appellate rules. We denied that motion with a note stating

that we would not accept any further submissions. Walsh filed a petition for writ of



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certiorari in the United States Supreme Court, which was denied on December 6, 2010.

The Supreme Court denied Walsh’s petition for rehearing on January 24, 2011.

        On January 28, 2011, Walsh filed a motion in the district court to reopen the

judgment, in which he alleged “criminal actions” on the part of counsel for the

defendants, and “recent actions” by the Dallastown Solicitor. Specifically, Walsh alleged

that appellees’ counsel, James W. Gicking, Esquire, “chopped up” his appeal in this

Court and planted and suppressed evidence, and that Gicking had admitted to doing so to

disciplinary counsel for the state supreme court, see Motion, at ¶ 4. Walsh alleged that

Gicking locked his filings and removed exhibits from the electronic case filing system at

the Third Circuit, see id. at ¶ 5. Last, Walsh alleged that Gicking used a deceased New

York attorney’s name on his brief in opposition to Walsh’s petition for writ of certiorari

before the United States Supreme Court, see id. at ¶ 6. Walsh alleged that Dallastown

Solicitor, Jeffrey L. Rehmeyer, tried to serve documents on him personally despite the

fact that Rehmeyer is represented by counsel. See Brief in Support of Motion to Reopen,

at 8.

        The defendants filed a response in opposition to reopening the judgment, in which

Gicking specifically addressed and denied Walsh’s allegations and factual assertions as

specious.

        In an order entered on February 14, 2011, the District Court denied Walsh’s

motion to reopen the judgment, and indicated, as we did on appeal, that it would accept

no further filings in the matter seeking to reopen or reconsider the judgment.

        Walsh appeals. Following the docketing of his appeal and prior to any briefing,

the appellees filed a motion for summary affirmance, in which they have also requested

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Rule 38 costs. Walsh has filed a written response in opposition to summary action and

Rule 38 costs.

       We have jurisdiction under 28 U.S.C. § 1291. Under Third Circuit LAR 27.4 and

I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that no

substantial question is presented by the appeal. We review the denial of a Rule 60(b)

motion for an abuse of discretion. See, e.g., Reform Party of Allegheny County v.

Allegheny County Dep’t of Elections, 174 F.3d 305, 311 (3d Cir. 1999). “The general

purpose of Rule 60(b) ... is to strike a proper balance between the conflicting principles

that litigation must be brought to an end and that justice must be done." Bougher v.

Secretary of Health, Educ. & Welfare, 572 F.2d 976, 977 (3d Cir. 1978). Rule 60(b) sets

forth exceptions to finality that permit a party to seek relief from a final judgment under a

specific set of circumstances. See Gonzalez v. Crosby, 545 U.S. 524, 529 (2005).

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal. We note as a threshold matter that the District Court

properly considered Walsh’s motion to reopen under Federal Rule of Civil Procedure

60(b). None of the rules or decisions cited by Walsh provide a basis for reopening the

judgment pursuant to a motion filed in the district court. Only Rule 60(b) serves that

purpose in Walsh’s case, and he thus must comply with the requirements of the rule. In

addition, the District Court properly determined that Walsh’s motion was untimely under

the first three grounds for Rule 60(b) relief because it was not filed within one year of the

District Court’s summary judgment. See Rule 60(c)(1)(A) (“A motion under Rule 60(b)

must be made within a reasonable time – and for reasons (1), (2), and (3) no more than a

year after the entry of the judgment or order or the date of the proceeding”); Moolenaar v.

                                              4
Gov’t of Virgin Islands, 822 F.2d 1342, 1348 (3d Cir. 1987) (two years not “reasonable

time” for 60(b) purposes). The District Court properly determined that grounds four and

five plainly do not apply to Walsh’s allegations.

       We conclude that no substantial question is presented by the District Court’s

determination that no extraordinary circumstances justifying relief under subparagraph

(b)(6), the “catch all” provision of Rule 60, are presented by Walsh’s current allegations.

Relief is available only when the case presents extraordinary circumstances. See, e.g.,

Martinez-McBean v. Gov’t of Virgin Islands, 562 F.2d 908, 911 (3d Cir. 1977). Walsh’s

allegations against Gicking and Rehmeyer concern conduct in our Court and the United

States Supreme Court during the course of Walsh’s appeal. These allegations of post-

judgment conduct, as a matter of fact, have no relevance to the District Court’s

determination that the defendants were entitled to summary judgment.1 Walsh’s

allegation that Carol Stein lied at her deposition may be considered in determining

whether the summary judgment should be reopened under Rule 60(b)(6), but neither

Walsh’s personal belief that Stein’s testimony was false nor the police report he believes

corroborates his allegation establishes that extraordinary circumstances warrant

reopening the judgment.

       The appellees contend in their motion for summary affirmance that Walsh’s

appeal from the District Court’s order denying his motion to reopen the judgment is

plainly frivolous, and thus we should award costs pursuant to Rule 38, Fed. R. App. Pro.

1
 In any event, we agree with the District Court’s observation in the margin that Walsh’s
evidence did not support his contentions that Gicking “hacked the Third Circuit ECF
filing system and locked Walsh out or chopped up his filings;” admitted misconduct in a
disciplinary proceeding; and filed a brief under the name of a deceased attorney, or his
contention that Rehmeyer violated his constitutional rights. See District Court
Memorandum, at 6-7 n.2.
                                             5
The appellees have complained about Walsh’s specious accusations, including, for

example, his fabricated and untruthful claim that Gicking used the name of a deceased

attorney to file his response to the petition for writ of certiorari. The appellees also

complain about the expense of defending this appeal. Walsh has responded by, among

other things, noting that he has two children to support, and that costs were awarded

against him in his last appeal (which we note was not frivolous), and yet the appellees

never filed a bill of costs. See generally LAR 39.4(a) (“The court will deny untimely

bills of cost unless a motion showing good cause is filed with the bill.”).

       We will deny the request for damages without prejudice. “If a court of appeals

determines that an appeal is frivolous, it may ... award just damages and single or double

costs to the appellee.” Fed. R. App. Pro. 38. Damages are awarded based on the merits

of the appeal; we do not consider whether an appellant has acted “out of malice,

ignorance, or deceit.” Beam v. Bauer, 383 F.3d 106, 108 (3d Cir. 2004). Rule 38 serves

“to make whole a party victimized by needlessly having to expend money for attorneys

fees to protect a valid judgment from a baseless attack.” Id. Although we agree with the

appellees that Walsh has persisted in his misguided arguments and specious factual

assertions, and that this appeal is frivolous, the appellees were able to use our summary

action procedure to good effect and will not have to file a brief. However, should Walsh

file any frivolous post-decision motions in this appeal, the appellees may, in any response

in opposition, renew their request for attorneys’ fees. They should specify the amount of

the fees requested so that we may impose an order without further delay.




                                              6
       For the foregoing reasons, we will summarily affirm the order of the District Court

denying Walsh’s motion to reopen the judgment. The appellees’ Rule 38 request for

costs is denied without prejudice.




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