     Case: 17-30600      Document: 00514315781         Page: 1    Date Filed: 01/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-30600                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         January 22, 2018
JAMIE LABRANCHE,                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant
v.

DEPARTMENT OF DEFENSE, Inspector General,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-cv-02280


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Jamie LaBranche filed suit against the Department
of Defense, Office of Inspector General, alleging violations of the Inspector
General Act of 1978, Title VII, and the Federal Tort Claims Act. The district
court dismissed the suit based on a lack of subject matter jurisdiction.
LaBranche did not timely appeal the dismissal. He then filed a motion for relief
from judgment pursuant to Federal Rule of Civil Procedure 60(b) and a motion


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30600
to unseal a document related to another federal action. The district court
denied both of his motions. LaBranche appeals these denials. We AFFIRM.
                                        I.
      In June 2015, Jamie LaBranche brought a pro se lawsuit against the
Department of Defense, Office of Inspector General (“DOD-OIG”), alleging
violations of the Inspector General Act of 1978, Title VII, and the Federal Tort
Claims Act. DOD-OIG filed a motion to dismiss, arguing that the court lacked
subject matter jurisdiction over LaBranche’s claims. While the motion to
dismiss was pending, LaBranche sought leave to amend his complaint to add
three federal defendants. A magistrate judge denied this motion to amend
because the amendment would be futile. LaBranche did not appeal this
decision. Subsequently, the district court dismissed his action without
prejudice in February 2016. It stated three reasons for dismissal:
(1) LaBranche was not a federal employee of DOD-OIG and thus had no ground
for relief under the Inspector General Act; (2) he was not a regular employee
of DOD-OIG and thus had no ground for relief under Title VII; and (3) he did
not timely submit an administrative tort claim to DOD-OIG within two years
of his alleged injury and thus cannot obtain relief under the Federal Tort
Claims Act. LaBranche did not file a timely appeal of this judgment.
      In October 2016, LaBranche filed a motion for relief from this judgment
pursuant to Federal Rule of Civil Procedure 60(b) and a motion to unseal a
document allegedly contained in the record of another federal lawsuit. The
district court denied both of his motions. It determined that the Rule 60(b)
motion did not contain information that rectified the lack of subject matter
jurisdiction and that the document at issue in the motion to unseal had no
effect on the court’s jurisdiction. LaBranche did not file a notice of appeal of
this ruling, but instead filed a petition for a writ of mandamus, which this court
then construed as a notice of appeal.
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                                 No. 17-30600
                                       II.
                                       A.
      We review the denial of a Rule 60(b) motion under an abuse of discretion
standard. See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir.
1993). “Under this standard, the court’s decision need only be reasonable.” Id.
(citing Midland W. Corp. v. FDIC, 911 F.2d 1141, 1145 (5th Cir. 1990)). In his
brief, LaBranche argues for reversing the denial of leave to amend and the
dismissal. As LaBranche did not previously appeal the denial of his motion to
amend the complaint or the dismissal of his suit for lack of subject matter
jurisdiction, the merits of those lower court decisions are not properly before
us. See In re Ta Chi Navigation (Pan.) Corp. S.A., 728 F.2d 699, 700 (5th Cir.
1984). “[T]he denial of a Rule 60(b) motion does not bring up the underlying
judgment for review.” Id. at 703 (collecting cases). We have “stressed that a
Rule 60(b) appeal may not be used as a substitute for the ordinary process of
appeal once the appeal period has passed.” Id.
      LaBranche’s Rule 60(b) motion sought post-judgment relief under
subsections (1), (2), and (3) of Rule 60(b). The district court did not abuse its
discretion in denying his motion under any of these subsections. Rule 60(b)(1)
allows a party to receive post-judgment relief in cases of “mistake,
inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1).
LaBranche did not provide any specific facts demonstrating any of these bases.
Thus, his claim under Rule 60(b)(1) fails.
      Rule 60(b)(2) allows a party to receive post-judgment relief if there exists
“newly discovered evidence.” Fed. R. Civ. P. 60(b)(2). “To obtain Rule 60(b)(2)
relief, a movant must demonstrate: ‘(1) that it exercised due diligence in
obtaining the information; and (2) that the evidence is material and controlling
and clearly would have produced a different result if present before the original
judgment.’” Thermacor Process, L.P. v. BASF Corp., 567 F.3d 736, 744 (5th Cir.
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                                   No. 17-30600
2009) (per curiam) (quoting Hesling v. CSX Transp., Inc., 396 F.3d 632, 639
(5th Cir. 2005)). LaBranche did allege that there were some recent
developments with information that related to his case, including the
document at issue in the motion to unseal. However, the information provided
in the motion is vague, and it is unclear how this information would have
clearly produced a different outcome if it had been before the district court. See
id. Further, LaBranche did not show that he was diligent in obtaining this
information. Consequently, his claim under Rule 60(b)(2) fails.
      Finally, Rule 60(b)(3) allows a party to receive post-judgment relief if
there is “fraud . . . , misrepresentation, or misconduct by an opposing party.”
Fed. R. Civ. P. 60(b)(3). “A party making a Rule 60(b)(3) motion must establish
(1) that the adverse party engaged in fraud or other misconduct, and (2) that
this misconduct prevented the moving party from fully and fairly presenting
his case.” Hesling, 396 F.3d at 641 (citing Gov’t Fin. Servs. One Ltd. P’ship v.
Peyton Place, Inc., 62 F.3d 767, 772 (5th Cir. 1995)). “The moving party has the
burden of proving the misconduct by clear and convincing evidence.” Id. (citing
Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978)). LaBranche did
not provide any specific facts satisfying any of these requirements. Thus, his
claim under Rule 60(b)(3) fails.
                                       B.
      LaBranche argues that the district court erred by denying his motion to
unseal a document allegedly in the record of another federal action. We review
a district court’s ruling on a motion to unseal for an abuse of discretion. See N.
Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 203 (5th
Cir. 2015) (collecting cases). LaBranche does not explain how the information
in the document would remedy the lack of subject matter jurisdiction in his
case. Thus, the district court did not abuse its discretion in denying this
motion.
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                                     No. 17-30600
                                            C.
      LaBranche also appears to contend, for the first time on appeal, that this
court should reverse or vacate the district court’s decisions on his Rule 60(b)
motion and motion to unseal because the magistrate judge who was assigned
to the case after October 18, 2016, should have been recused. While we have
previously treated a recusal motion raised for the first time on appeal as
untimely, we do not have a per se rule that any recusal motion made after the
district court’s judgment is untimely. See United States v. Sanford, 157 F.3d
987, 989 (5th Cir. 1998). Here, even assuming arguendo that LaBranche’s
contention is timely and that we conclude that the magistrate judge should
have been recused, LaBranche would not prevail.
      In this circuit, even if we decide that a judge should have been recused,
we apply a harmless error test in determining whether reversal or vacatur is
mandatory. See Patterson v. Mobil Oil Corp., 335 F.3d 476, 485 (5th Cir. 2003).
We consider “(1) the risk of injustice to the parties in this case; (2) the risk that
denial of relief will create injustice in other cases; and (3) ‘the risk of
undermining the public’s confidence in the judicial process.’” Id. (quoting
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988)). The
magistrate judge who was assigned after October 18, 2016, has not signed any
orders or ruled on any motions in this case. 1 Thus, even assuming that recusal
was warranted, the non-recusal did not create or heighten any of the
aforementioned risks, and was therefore harmless.
                                           III.
      For the foregoing reasons, the district court’s denials of LaBranche’s
Rule 60(b) motion and motion to unseal are AFFIRMED.


      1  Previously, a different magistrate judge was assigned to this case and had ordered
the denial of LaBranche’s motion to amend the complaint to add defendants. The motions at
issue on appeal were decided by the district judge.
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