                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 05-2394



NARAYANA I. SRINIVASAN,

                                             Plaintiff - Appellant,

     versus


JOHN SNOW, Secretary, United States Department
of Treasury,

                                              Defendant - Appellee.

---------------------------------------------

VIRGINIA TRIAL LAWYERS ASSOCIATION,

                                       Amicus Supporting Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-05-
127-PJM)


Argued:   November 30, 2006             Decided:   December 28, 2006


Before MOTZ and DUNCAN, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.


Dismissed in part and affirmed in part by unpublished per curiam
opinion.


ARGUED: Nicholas Wyckoff Woodfield, EMPLOYMENT LAW GROUP, P.C.,
Washington, D.C., for Appellant. Ariana Wright Arnold, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: R. Scott Oswald, EMPLOYMENT LAW GROUP, P.C., Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee. John E. Davidson, DAVIDSON &
KITZMAN, Charlottesville, Virginia, for Virginia Trial Lawyers
Association, Amicus Supporting Appellant.


Unpublished opinions are not binding precedent in this circuit.




                               -2-
PER CURIAM:

      Narayana I. Srinivasan appeals the grant of summary judgment

to the Internal Revenue Service (“IRS”) on his claims that the IRS

discriminated against him because of national origin and religion

and   retaliated   against    him    for      filing   an   Equal   Employment

Opportunity Commission (“EEOC”) complaint, in violation of 42

U.S.C. § 2000e et seq.       Srinivasan also appeals the denial of his

motion   under   Federal   Rule     of    Civil   Procedure   56(f)    to   stay

consideration of the summary judgment motion in order to permit

discovery, and the denial of his motion for reconsideration after

summary judgment had been entered.            We dismiss in part and affirm

in part.



                                         I.

      Srinivasan is a 64-year old United States citizen of Indian

origin who began working at the IRS in 1995 as a Senior Technical

Advisor.    He alleges that between 1996 and 2001, his superiors at

the IRS harassed him and took adverse employment actions against

him because of his national origin and religion, and that they

retaliated against him for filing an EEOC complaint.                As a result

of the alleged harassment, Srinivasan resigned on September 10,

2001.    He subsequently filed a complaint under Title VII, alleging

(1) discrimination and constructive discharge, (2) a hostile work

environment, and (3) retaliation.


                                     -3-
     The IRS moved to dismiss or, in the alternative, for summary

judgment. Srinivasan filed an opposition to this motion as well as

a request to stay consideration of the IRS’s motion in order to

permit discovery pursuant to Rule 56(f). The district court denied

Srinivasan’s   motion   to   stay   and   subsequently       granted   summary

judgment to the IRS on July 7, 2005.             At the summary judgment

hearing held that day the district court stated: “I will give the

plaintiff [the] opportunity, to file within 30 days a motion to

reconsider.    I’m   extending      the   time   to   file    the   Motion   to

Reconsider.”

     At the request of Srinivasan’s attorney, the court clarified

the nature of the Motion to Reconsider:

     If there is something new and different that could not
     have been adduced to the Court, whatever the standards
     for the Motion to Reconsider, I’ll entertain it on that
     basis. But I’m not saying . . . you will have another
     chance to file your Motion for Summary Judgment in 30
     days.   If that were so, I would say I’m not going to
     decide the issues for another 30 days . . . Right now the
     Court is entering an Order of Summary Judgment in favor
     of the defendant.

In the order granting summary judgment to the IRS, the court

similarly included the following language: “Plaintiff shall have

LEAVE to file, within thirty (30) days from today, a Motion to

Reconsider the Court’s Order herein.”

     Srinivasan filed a “Motion for Reconsideration” on August 5,

2006. After concluding that Srinivasan failed to provide the court




                                    -4-
with new material that warranted reopening his case, the district

court denied that motion on November 28, 2005.

     Srinivasan filed a notice of appeal on December 5, 2006,

attempting to appeal orders: (1) denying the Rule 56(f) motion, (2)

granting summary judgment to the IRS, and (3) denying the motion

for reconsideration.



                                 II.

     The IRS contends that Srinivasan did not timely appeal the

district court’s orders denying his Rule 56(f) motion and granting

summary judgment to the IRS; Srinivasan contends that these appeals

were timely.

     If the government is a party to the case, Federal Rule of

Appellate Procedure 4(a)(1)(B) grants both parties 60 days to file

an appeal.     If a party does not note a timely appeal, we lack

jurisdiction to hear the case.   See Browder v. Dir., Dep’t of Corr.

of Ill., 434 U.S. 257, 264 (1978) (holding that the time limits in

Rule 4(a) are “mandatory and jurisdictional”).   The district court

granted summary judgment to the IRS on July 7, 2005.     Srinivasan

had 60 days from that date to file a notice of appeal.   He did not

file the notice of appeal until December 5, 2006, well after the

60-day deadline.    Accordingly, Srinivasan’s appeal of the order

granting summary judgment, and of the underlying order denying his




                                 -5-
Rule 56(f) motion, is not timely and we lack jurisdiction to

consider these orders.*

     Srinivasan   claims    that   his   appeal   is    nonetheless   timely

because the district court’s judgment was not final until it denied

his motion for reconsideration on November 28, 2005.          Although the

district court set forth its order granting summary judgment on a

separate   document,   as   is   required   under      Fed.R.Civ.P.   58(a),

Srinivasan contends that the court did not intend for the order to

be final because it included in the order the words “[p]laintiff

shall have LEAVE to file, within thirty (30) days from today, a

Motion to Reconsider the Court’s Order herein.”


     *
      If Srinivasan had filed his motion for reconsideration within
10 days after the district court entered its order granting summary
judgment, then the appeals period would have been tolled until the
district court had denied the motion for reconsideration.       See
Fed.R.App.P. 4(a)(4)(A).       Srinivasan filed his motion for
reconsideration 30, rather than 10, days after the district court
entered its order; thus, his motion for reconsideration did not
toll the time for filing a notice of appeal. Srinivasan seemingly
relied on the district court’s order granting him leave to file a
motion to reconsider within 30, rather than 10, days. However, a
district court has no authority to extend the time for filing such
motions, because the time limits are jurisdictional. See Alston v.
MCI Commc’ns, Corp., 84 F.3d 705, 706 (4th Cir. 1996)(holding that
the district court there “was without power to enlarge the time
period for filing a Rule 59(e) motion” (citing Fed.R.Civ.P. 6(b)
(“[The district court] may not extend the time for taking any
action under Rules 59(b), (d), and (e), [and] 60(b) . . . .”)). We
note that in limited situations, the Supreme Court’s “unique
circumstances” doctrine may save the otherwise untimely appeal of
a party who relied on a district court’s assurances that his appeal
would be timely.     See Thompson v. INS, 375 U.S. 384 (1964);
Panhorst v. United States, 241 F.3d 367 (4th Cir. 2001).
Srinivasan waived this argument by not raising it in his briefs.
Accordingly, we do not consider whether the limited reach of the
unique circumstances doctrine applies to this case.

                                   -6-
     Srinivasan rests his argument on Bankers Trust Co. v. Mallis,

435 U.S. 381 (1978), which discusses the Rule 58(a) requirement

that a separate document set forth a final judgment.    In Bankers

Trust, although the district court had failed to do this, the

Supreme Court nonetheless concluded that the judgment was final

because the court “clearly evidenced its intent that the opinion

and order from which an appeal was taken would represent the final

decision in the case,” and “the petitioner did not object to the

taking of the appeal in the absence of a separate judgment.”     Id.

at 387-88. Bankers Trust thus stands for the proposition that when

a district court intends a judgment to be final, and simply fails

to create a separate document setting forth that judgment, a party

can rely on the intent of the court to make the judgment final.

     Srinivasan does not cite, however, nor have we found, cases

that suggest the converse -- that even when a district court

creates a separate document with a final order, we can conclude

that the order was not final based on the court’s indication that

the parties could file a motion for reconsideration.    Even if we

did conclude that we could look at the district court’s intent, in

this case the court clearly intended its order to be final. The

court stated at the summary judgment hearing:

     I’m not saying . . . you will have another chance to file
     your Motion for Summary judgment in 30 days. If that
     were so, I would say I’m not going to decide the issues
     for another 30 days. So that, understand that, this is
     a Motion to Reconsider. Right now the Court is entering


                               -7-
     an Order of Summary Judgment in favor of the defendant.

     The district court made clear to the parties that it was not

delaying the entry of a final order when it gave Srinivasan leave

to file a motion to reconsider within 30 days.                 As such, the

district court’s order of July 7, 2005 was final, and Srinivasan

failed to file a timely notice of appeal when he did not do so

within 60 days.     For these reasons, we must dismiss for lack of

jurisdiction Srinivasan’s appeal of the orders denying his Rule

56(f) motion and granting summary judgment to the IRS.



                                   III.

     We do have jurisdiction to hear Srinivasan’s appeal of the

order denying his motion for reconsideration.

     Srinivasan filed this motion without specifying which Federal

Rule of Civil Procedure provided authority for it.              Although the

district   court    considered   the     motion    under   Fed.R.Civ.P.      59,

Srinivasan contends that the court should have viewed the motion

under Fed.R.Civ.P. 56(e) as a supplemental filing.                Srinivasan

rests his argument on the district court’s statement that “the

plaintiff will have leave to file a Motion to Reconsider . . . .”

     Under   Rule   56(e),   a   court    “may    permit   affidavits   to    be

supplemented or opposed by depositions, answers to interrogatories,

or further affidavits.” (emphasis added).           Thus, a court must give

parties permission to file a Rule 56(e) motion, whereas a party


                                    -8-
does not need permission to file a Rule 59 motion.               According to

Srinivasan, the fact that the court granted him “leave” to file the

motion means that the motion must have been a Rule 56(e), rather

than a Rule 59, motion. The district court’s explanation at the

summary judgment hearing, however, does not permit that argument.

There the court explained that it was “not saying . . you will have

another chance to file your Motion for Summary Judgment . . . . “

Rather, the district court told Srinivasan it would only consider

something “new and different” under “the standards for the Motion

to Reconsider.”

     The   district    court    did     not   err   in   refusing      to   view

Srinivasan’s motion as a Rule 56(e) motion to supplement the

summary judgment record.         See Cray Commc’ns, Inc. v. Novatel

Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994) (holding that

district court did not abuse its discretion in failing to consider

affidavits and exhibits offered to supplement the record after

summary judgment was entered); RGI, Inc. v. Unified Industries,

Inc., 963 F.2d 658, 662 (4th Cir. 1992) (holding that a party could

not supplement its pleadings under Rule 56 after summary judgment

had been entered, but that a party could submit a Rule 59 motion to

the court after summary judgment had been entered if the movant had

material unavailable to it previously).

     However,   we    believe   that    the   district   court   did    err   in

considering the motion under Rule 59.           In order to be timely, a


                                       -9-
Rule 59 motion must be filed no later than 10 days after entry of

judgment.       See Fed.R.Civ.P. 59(e).          Because Srinivasan filed his

motion 30 days after entry of judgment, he did not file a timely

Rule 59 motion.         Rather than concluding that the motion was

jurisdictionally time-barred, however, it seems more appropriate

given    the    facts   of   this    case   to    consider   the   motion   as   a

Fed.R.Civ.P. 60(b) motion.           See In re Burnley, 988 F.2d 1, 2 (4th

Cir. 1993)(explaining that “where a party submits a [subsequent]

motion . . . which is unnamed and does not refer to a specific

Federal Rule of Civil Procedure, the courts have considered that

motion either a Rule 59(e) motion to alter or amend a judgment, or

a Rule 60(b) motion for relief from a judgment or order”).

     Indeed, Rule 60(b) explicitly allows the filing of a motion

under the precise circumstances envisioned by the district court,

i.e. when a party has “newly discovered evidence which by due

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).     Because Rule 60

allows a party up to one year to file a motion, Srinivasan’s

“Motion for Reconsideration” can be properly considered under Rule

60(b).   This allows us to review the merits of Srinivasan’s appeal

of the denial of his “Motion for Reconsideration.”                 But of course

it has no substantive effect on our deliberations, because on

appeal we apply the same standard of review to Rule 59 and Rule 60

motions.       See Boryan v. United States, 884 F.2d 767, 771 (4th Cir.


                                        -10-
1989) (citing United States Fidelity & Guaranty Co. v. Lawrenson,

334 F.2d 464, 475 n.2 (4th Cir.), cert. denied, 379 U.S. 869 (1964))

(holding that the standard governing relief on the basis of newly

discovered evidence under Rule 59 or Rule 60 is the same).

     That standard is abuse of discretion. In re Burnley, 988 F.2d

at 3.     “[I]n order to support a motion for reconsideration, the

movant is obliged to show not only that this evidence was newly

discovered or unknown to it until after the hearing, but also that

it could not with reasonable diligence have discovered and produced

such evidence at the hearing.”       Boryan, 884 F.2d at 771 (citations

and quotation marks omitted).        The district court concluded that

Srinivasan had not met this burden.

     In    support   of   his    motion,   Srinivasan   submitted   three

affidavits of co-workers, each of which had been prepared prior to

the summary judgment hearing.         The only new material Srinivasan

submitted was an affidavit prepared by Srinivasan himself and a

portion of Srinivasan’s deposition testimony.           As the district

court correctly noted, that information was surely available to

Srinivasan at the time of the summary judgment hearing, since it

came from his own mouth.        Under these circumstances, we must hold

that the court did not abuse its discretion in concluding that

Srinivasan had failed to provide “newly discovered” evidence in

support of his motion for reconsideration.       Accordingly, we affirm




                                    -11-
the   district     court’s   denial    of   Srinivasan’s   motion   for

reconsideration.



                                 IV.

      For the foregoing reasons, we dismiss as untimely Srinivasan’s

appeal from the district court orders denying his Rule 56(f) motion

and granting summary judgment to the IRS, and affirm the district

court’s order denying Srinivasan’s motion for reconsideration.



                              DISMISSED IN PART AND AFFIRMED IN PART




                                 -12-
