Archie L. Tucker, Appellant, v. Small Business Administration, 946 F.2d 1566 (D.C. Cir. 1991)

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US Court of Appeals for the District of Columbia Circuit - 946 F.2d 1566 (D.C. Cir. 1991) June 28, 1991. Rehearing and Rehearing En Banc Denied Sept. 11, 1991

Before HARRY T. EDWARDS, BUCKLEY and STEPHEN F. WILLIAMS, Circuit Judges.

ORDER

PER CURIAM.


Upon consideration of the motion for summary reversal and the opposition thereto; the motion for summary affirmance, the opposition thereto, and the reply; the motion for an enlargement of time to file response, and the opposition thereto; the addendum; and the petition for review, it is

ORDERED that the motion for enlargement of time be granted. It is

FURTHER ORDERED that the motion for summary affirmance be granted. The merits of the parties' positions are so clear as to justify summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam); Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.) (per curiam), cert. denied, 449 U.S. 994 (1980). Because the order denying appellant's motion for new trial had the characteristics of a "judgment" under Fed. R. Civ. P. 58, cf. Diamond by Diamond v. McKenzie, 770 F.2d 225, 228 (D.C. Cir. 1985) (per curiam), the appellant's "memorandum of points and authorities in support of previously filed motion for new trial," filed eight months later, should have been construed as being brought under Fed. R. Civ. P. 60(b). The district court did not abuse its discretion in denying this motion. It is

FURTHER ORDERED that the motion for summary reversal be denied. It is

FURTHER ORDERED that the addendum and the petition for review be dismissed as moot.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.