
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1654                                    LOUIS KUSHNER,                                Plaintiff, Appellant,                                          v.                             UNITED STATES RURAL ECONOMIC                          AND COMMUNITY DEVELOPMENT AGENCY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                 ____________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Louis Kushner on brief pro se.            _____________            Donald K. Stern, United States Attorney, and Christopher  Alberto,            _______________                              ____________________        Assistant United  States Attorney,  on Motion for  Summary Disposition        for appellee.                                 ____________________                                   February 3, 1997                                 ____________________                      Per Curiam.  The district court dismissed appellant                      __________            Louis Kushner's  complaint  against the  United States  Rural            Economic  and  Community   Development  Agency  ("RECD")  for            failing to show good  cause for not effecting service  on the            RECD.  However, appellant never filed a notice of appeal from            this  dismissal;  as such,  it is  not before  us.   The only            orders  from which  a timely  appeal has  been taken  are the            denial  of appellant's motion to reopen and the denial of the            accompanying motion  for emergency  relief.  Because  we find            that  the district court did not abuse its discretion when it            refused to reopen the case, we need not address the propriety            of the latter motion.                      Although not  labelled as a motion  for relief from            judgment  under Fed.  R.  Civ. P.  60(b),  we shall  construe            appellant's  motion to  reopen as such  a motion.   See  7 J.                                                                ___            Moore, Moore's Federal Practice   60.18[8], at 60-139 (2d ed.                   ________________________            1996).  We review  a district court's denial of a  Rule 60(b)            motion for abuse of discretion.  Dankese v. Defense Logistics                                             _______    _________________            Agency, 693 F.2d 13,  15 (1st Cir. 1982).  Two subsections of            ______            Rule  60(b) possibly  are applicable  to appellant's  motion:            (1) Rule 60(b)(3) which provides for relief from judgment for            the "misconduct  of an adverse party"; and  (2) Rule 60(b)(6)            which  provides  for  relief  from judgment  for  "any  other            reason."                                         -2-                      To prevail under Rule 60(b)(3), appellant must show            how the  RECD's alleged  misconduct prevented him  from fully            presenting his case  in the district court.   See Perez-Perez                                                          ___ ___________            v.  Popular Leasing Rental, Inc., 993 F.2d 281, 285 (1st Cir.                ____________________________            1993).   The motion to reopen, which is a typewritten version            of  appellant's complaint,  offers no  explanation concerning            this  issue.   Although  appellant  sets  out  how  the  RECD            allegedly  prohibited  him  from  pursuing  an administrative            appeal, he does not describe any improper conduct by the RECD            with  regard to  the  dismissal of  appellant's complaint  or            error in the district court's dismissal of appellant's action            for failure to effectuate service.                      As for Rule 60(b)(6), it cannot be used "to  escape            the  consequences of failure to take a timely appeal."  Cotto                                                                    _____            v. United  States, 993 F.2d 274, 278  (1st Cir. 1993).  Thus,               ______________            "[a]bsent exceptional and  compelling circumstances, a  party            will  not be granted relief from a judgment under clause (6).            . . ."   Moore's Federal Practice, supra,    60.27[1], at 60-                     ________________________  _____            269; Cotto, supra.   To  meet this  standard, appellant  must                 _____  _____            show that  he was not at fault for not taking a timely appeal            from  the dismissal of his complaint.  See Cotto, 993 F.2d at                                                   ___ _____            280.   Because  the motion  to reopen  does not  address this            question,  appellant was  not entitled  to relief  under Rule            60(b)(6).                                         -3-                      For  the  foregoing reasons,  the  judgment  of the            district court is affirmed.                              ________                                         -4-
