Unpublished Disposition, 914 F.2d 263 (9th Cir. 1990)

MEMORANDUM^** 

Norris sued the Federal Bureau of Investigation for racial discrimination in hiring. He appeals the judgment of dismissal and the district court's denial of his motion for relief from judgment and of his motion challenging the court's in camera review of personnel files with the Washington State Patrol. We affirm.

FACTS AND PRIOR PROCEEDINGS

Norris, a black man, applied in the 1970's to the FBI for appointment as a special agent.¹  In 1979 he scored high enough on the written examination to qualify under the FBI's modified minority hiring program. His subsequent interview with a three-agent panel went well. A background investigation, however, uncovered considerable negative information about Norris.

The FBI background investigator reviewed and summarized files from the Washington State Patrol, the Seattle Police Department, the Yakima Police Department and the court that handled Norris's divorce. From the summaries of these files and other negative information about Norris, a reviewing agent at FBI headquarters determined that Norris lacked the good judgment necessary to be a FBI special agent.²  She rejected his application.

During the bench trial at which he represented himself, Norris admitted that most of the negatively noted incidents had occurred. These included being the subject of a harassment complaint filed by a Yakima woman, carrying a gun on a college campus while a graduate student, getting into a car with two women and being out of radio contact while on duty as a probationary Seattle police officer, and borrowing money from a known felon while in police uniform. Norris attempted to explain these incidents. He disputed other incidents listed in the files. He asserted that both his firing from the SPD and his resignation in lieu of being fired from the WSP were racially motivated.

At the close of the trial, the district court judge sua sponte conducted an in camera review of the WSP files on Norris that were reviewed and summarized by the FBI investigator. The judge found from his review of all the evidence that the FBI articulated a legitimate, nondiscriminatory reason for not hiring Norris and that no pretext had been shown. The court denied a post-trial "reconsideration" motion by Norris which incorporated four unsworn letters. The court also denied Norris's post-trial "motion to rescind" the in camera order.

DISCUSSION

The standard of review for denial of post-trial motions under Fed. R. Civ. P. 60(b) is abuse of discretion. Swimmer v. IRS, 811 F.2d 1343 (9th Cir. 1987). An appeal from denial of a Rule 60(b) motion places in issue only the denial of the motion for review, not the merits of the underlying decision. Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989).

Norris asserts that he has additional information that merits reconsideration of the case. Because of this assertion, and because he filed the "motion for reconsideration" more than ten days after entry of judgment, the "reconsideration" motion should be considered as one filed under Fed. R. Civ. P. 60(b) (2).³  See Straw v. Bowen, 866 F.2d 1167, 1171-72 (9th Cir. 1989) (untimely motion for reconsideration could be construed as a motion under Rule 60(b)).

"New evidence" under Rule 60(b) (2) must be evidence that could not have been produced by due diligence during the trial or in time to move for a new trial. Mayview Corp. v. Rodstein, 620 F.2d 1347, 1352-53 (9th Cir. 1980); Smith Int'l, Inc. v. Hughes Tool Co., 759 F.2d 1572 (Fed. Cir.), cert. denied, 474 U.S. 827 (1985). See also 7 J. Moore & J. Lucas, Moore's Federal Practice Sec. 60.23 (2d ed. 1990). The proffered evidence must be admissible and credible and "must be of such a material and controlling nature as will probably change the outcome." American Cetacean Soc. v. Smart, 673 F. Supp. 1102, 1106 (D.D.C. 1987) (citation omitted).

Appellant's "new evidence" does not meet those criteria. First, no reason is given or apparent why the letters could not have been produced at trial. Second, none of the letters is relevant to the issue whether racially discriminatory motives underlay the FBI's decision not to hire Norris. Two letters state that records are not immediately available. Another expresses the writer's lack of personal knowledge about an incident of misconduct. The fourth letter provides, at best, a character reference.

Since appellant's "new evidence" does not meet the Rule 60(b) (2) criteria, it was not an abuse of discretion for the district court to deny the motion.

Norris appeals the district court's denial of his "motion to rescind" the in camera order to the WSP. Without citing a supporting rule, he states generally his desire to review the WSP file in order to elaborate on and challenge its contents.

Fed. R. Civ. P. 60(b) (6) allows a court to relieve a party from a final judgment or order for "any reason justifying relief from the operation of the judgment." No good reason is suggested here.

This court declines to rule on the issue whether Washington law allows plaintiffs to review their law enforcement personnel files. This issue involves a shifting area of state law. See Brouillet v. Cowles Pub. Co., 114 Wash. 2d 788, 791 P.2d 526 (May 30, 1990) (en banc). It would be inappropriate for this court to gratuitously interpret the state's public disclosure law where no conceivable interpretation would change the outcome.

Norris was not prejudiced by his inability to review the WSP files. He admitted at trial that most of the negative incidents had occurred. The district court gave Norris every opportunity to explain why the incidents could not rationally be viewed as indicating poor judgment. Additionally, the district court judge determined, after reviewing the files, that they contained no information which would benefit by Norris's comments. Denial of the motion was not an abuse of discretion in the face of the negative information about Norris.

AFFIRMED.