CAFC discusses FRCP 54(b), 60(b) in Gravelle case

Of the distinction:

There was no finality until the district court issued its August 8, 2019 order determining the amount of fees owed—more than a year after the March 16, 2018 order. The Fourth Circuit has recognized that “Rule 60(b) [is] not available for relief from an interlocutory order” and that Rule 54(b) provides the avenue for such relief. Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1469–70 (4th Cir. 1991); see also, e.g., State Nat’l Ins. Co. v. County of Camden, 824 F.3d 399, 406 (3d Cir. 2016); McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701– 02 (5th Cir. 2014); Kapco Mfg. Co. v. C&O Enters., Inc., 773 F.2d 151, 153–54 (7th Cir. 1985).

Any error regarding Rule 60(c)(1), however, is harmless, as denial of Mr. Gravelle’s Rule 60(b) motion was correct regardless. Mr. Gravelle’s motion addresses how the district court considered his March 19, 2018 filing—as a motion to reconsider, not as an ordinary (but excusably late) response to Kaba’s motion for fees. See Order on Motion to Reconsider at 2–3 (applying the standard under Rule 54(b) for reconsideration of interlocutory orders). Although Mr. Gravelle could not have appealed the interlocutory Fees Entitlement Order or interlocutory Order on Motion to Reconsider when issued, he could have appealed them once final judgment was entered on attorneys’ fees on August 8, 2019. Mr. Gravelle did not do so, but instead waited until after the time for an appeal had passed, see 28 U.S.C. § 2107 (providing 30 days to appeal following entry of a judgment or order), and filed a Rule 60(b) motion. Having failed to appeal the district court’s order after it became final, however, Mr. Gravelle cannot use Rule 60(b) as a substitute to challenge the merits of the order. See, e.g., United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270–71 (2010); Wells Fargo, 859 F.3d at 300 (holding a Rule 60(b) motion to be untimely after the movant failed to timely appeal); see also McCulloch v. Sec’y of Health & Hum. Servs., 923 F.3d 998, 1001 (Fed. Cir. 2019) (“To rely on Rule 60(b) here would be to use it simply as a substitute for appeal to seek a change that could have been sought at the time that the appeal opportunity was available but bypassed.”). For that reason, Mr. Gravelle did not present his excusable-neglect claim, which he first raised in his Rule 60(b) motion, until it was too late. In any event, the district court’s denial of the Rule 60(b) motion must be affirmed for an independent reason. Timeliness aside, the district court determined that Mr. Gravelle failed to present “a meritorious defense,” Wells Fargo, 859 F.3d at 299, to the award of attorneys’ fees.

The district court faulted him for not providing the justifications for these actions in the motion itself. See Rule 60(b) Order, 2019 WL 6851605, at *2 (citing Compton v. Alton S.S. Co., 608 F.2d 96, 102 (4th Cir. 1979)). On appeal, Mr. Gravelle argues that he filed an affidavit that supports his meritorious defense. See Gravelle Br. at 1–2. But he filed that affidavit, not with his motion, but only after Kaba responded to the motion. We cannot say that the court abused its discretion in not considering the submission made only at that stage. See Rule 60(b) Order, 2019 WL 6851605, at *2.