United States v. Virginia Russell, 578 F.2d 806 (9th Cir. 1978). · Go Syfert
United States v. Virginia Russell, 578 F.2d 806 (9th Cir. 1978). Cases Citing This Book View Copy Cite
24 citation events across 4 distinct courts.
Strongest positive: Trudi Lytle v. Jean Serum, Dr. Clark County School District Eva Simmons Kay Carl Ed Goldman (ca9, 1996-08-16)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 19 distinct citers.
discussed Cited as authority (rule) Trudi Lytle v. Jean Serum, Dr. Clark County School District Eva Simmons Kay Carl Ed Goldman
9th Cir. · 1996 · confidence medium
Our review is limited to "whether the judge abused his discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not shown," and the appellant may not "attack the underlying judgment for error that could have been complained of on direct appeal." United States v. Russell, 578 F.2d 806, 807 (9th Cir.1978) (internal quotations and citation omitted). 4 Lytle contends that the district court's denial of her motion to set aside the order denying injunctive relief was an abuse of discretion.
cited Cited as authority (rule) United States v. Billy Joe Bagwell Cynthia Bagwell
9th Cir. · 1992 · confidence medium
Nogueira, 403 F.2d at 823-25 ; United States v. Russell, 578 F.2d 806, 807-08 (9th Cir.1978).
cited Cited as authority (rule) ca9 1986
9th Cir. · 1986 · confidence medium
In re Burley, 738 F.2d 981 , 988 (9th Cir.1984); Plotkin v. Pacific Telephone & Telegraph Co., 688 F.2d 1291, 1292 (9th Cir.1982); United States v. Russell, 578 F.2d 806, 807 (9th Cir.1978).
cited Cited as authority (rule) Lafarge Conseils et Etudes v. Kaiser Cement & Gypsum Corp.
9th Cir. · 1986 · confidence medium
In re Burley, 738 F.2d 981 , 988 (9th Cir.1984); Plotkin v. Pacific Telephone & Telegraph Co., 688 F.2d 1291, 1292 (9th Cir.1982); United States v. Russell, 578 F.2d 806, 807 (9th Cir.1978).
cited Cited as authority (rule) Harriet M. Gould, an Unremarried Widow v. Mutual Life Insurance Company of New York, a Foreign Corporation
9th Cir. · 1986 · confidence medium
Labor Relations Board, 680 F.2d 664 , 668 (9th Cir.1982) (citing United States v. Russell, 578 F.2d 806, 807 (9th Cir.1978)), cert. denied, 459 U.S. 1071 , 103 S.Ct. 491 , 74 L.Ed.2d 633 (1982).
cited Cited as authority (rule) Alphonso Thompson v. The Housing Authority of the City of Los Angeles, a Public Corporation
9th Cir. · 1986 · confidence medium
United States v. Russell, 578 F.2d 806, 807 (9th Cir.1978); Plotkin v. Pacific Tel. and Tel.
cited Cited as authority (rule) United States v. Langley
E.D. Cal. · 1984 · confidence medium
United States v. Russell, 578 F.2d 806, 807-08 (9th Cir.1978); Nogui era, 403 F.2d at 824 .
cited Cited as authority (rule) R.E. Rodgers and Barbara Rodgers v. James G. Watt, Secretary of the Interior of the United States of America
9th Cir. · 1983 · confidence medium
United States v. Russell, 578 F.2d 806, 807 (9th Cir.1978) (per curiam); Savarese v. Edrick Transfer & Storage, Inc., 513 F.2d 140, 146 (9th Cir.1975).
cited Cited as authority (rule) In Re Robert J. Mason, Debtor. Robert J. Mason v. Integrity Insurance Company and Sherwood & Roberts, Inc.
9th Cir. · 1983 · confidence medium
See Smith v. Stone, 308 F.2d 15, 18 (9th Cir.1962); United States v. Russell, 578 F.2d 806, 807 (9th Cir.1978).
cited Cited as authority (rule) Al K. Plotkin, and Gerald Kilgore, Individually and Dba Jk Sports Journal v. Pacific Telephone and Telegraph Company, a Corporation
9th Cir. · 1982 · confidence medium
United States v. Russell, 578 F.2d 806, 807 (9th Cir. 1978); Savarese v. Edrick Transfer & Storage, Inc., 513 F.2d 140, 146 (9th Cir. 1975).
cited Cited as authority (rule) Ellis v. Brotherhood of Railway, Airline & Steamship Clerks
9th Cir. · 1982 · confidence medium
United States v. Russell, 578 F.2d 806, 807 (9th Cir. 1978).
cited Cited as authority (rule) ca9 1982
9th Cir. · 1982 · confidence medium
United States v. Russell, 578 F.2d 806, 807 (9th Cir. 1978).
cited Cited as authority (rule) Cel-A-Pak v. California Agricultural Labor Relations Board
9th Cir. · 1982 · confidence medium
Browder, supra, 434 U.S. at 263 n.7, 98 S.Ct. at 560 n.7; Matter of Roach, 660 F.2d 1316, 1318 (9th Cir. 1981); United States v. Russell, 578 F.2d 806, 807 (9th Cir. 1978).
discussed Cited as authority (rule) Cel-A-Pak v. California Agricultural Labor Relations Board
9th Cir. · 1982 · confidence medium
Browder, supra, 434 U.S. at 263 n.7, 98 S.Ct. at 560 n.7; Matter of Roach, 660 F.2d 1316, 1318 (9th Cir. 1981); United States v. Russell, 578 F.2d 806, 807 (9th Cir. 1978). 20 Appellant concedes that ordinarily only abuse of discretion can be considered, but contends we must address the merits in this case because the post-trial motion was "addressed to the question of jurisdiction." Although review of a Rule 60(b) motion may encompass a claim that the district acted in excess of its jurisdiction, see United States v. Russell, supra, 578 F.2d at 807 , no such contention is advanced here.
cited Cited as authority (rule) National Industries, Inc., a Kentucky Corporation v. Republic National Life Insurance Company, a Texas Corporation
9th Cir. · 1982 · confidence medium
Browder v. Director, Department of Corrections, 434 U.S. 257 , 263 n.7, 98 S.Ct. 556 , 560 n.7, 54 L.Ed.2d 521 (1978); United States v. Russell, 578 F.2d 806, 807 (9th Cir. 1978).
discussed Cited as authority (rule) Roach v. Roach
1st Cir. · 1981 · confidence medium
Browder v. Director, Department of Corrections, 434 U.S. 257 , 263 n.7, 98 S.Ct. 556 , 560 n.7, 54 L.Ed.2d 521 (1978); United States v. Russell, 578 F.2d 806, 807 (9th Cir. 1978) (per curiam). 9 (1) The April 21 judgment and order for relief from the automatic stay was not clearly erroneous. 10 An appeal from a denial of a Fed.R.Civ.P. 60(b) motion does not bring up the underlying judgment for review.
cited Cited as authority (rule) First National Bank of Anchorage & Alaska Title Guaranty Co. v. Roach
9th Cir. · 1981 · confidence medium
Browder v. Director, Department of Corrections, 434 U.S. 257 , 263 n.7, 98 S.Ct. 556 , 560 n.7, 54 L.Ed.2d 521 (1978); United States v. Russell, 578 F.2d 806, 807 (9th Cir. 1978) (per curiam).
cited Cited as authority (rule) Bales v. Ruch
E.D. Cal. · 1981 · confidence medium
(Citation omitted) United States v. Russell, 578 F.2d 806, 807-08 (9th Cir. 1978).
cited Cited as authority (rule) Alfredo M. RODRIGUEZ, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Corporation, Defendant-Appellee
9th Cir. · 1978 · confidence medium
United States v. Russell, 578 F.2d 806, 807 (9th Cir. 1978).
UNITED STATES of America, Plaintiff-Appellee,
v.
Virginia RUSSELL, Defendant-Appellant
76-1811.
Court of Appeals for the Ninth Circuit.
Oct 14, 1978.
578 F.2d 806
Jane L. Skanderup (argued), Yreka, Cal., for defendant-appellant., Jacques B. Gelin, Atty. (argued), Dept, of Justice, Washington, D. C., for plaintiff-ap-pellee.
Browning, Carter, Anderson.
Cited by 20 opinions  |  Published
PER CURIAM:

Appellant’s notice of appeal was filed six days after entry of the order denying appellant’s motion to set aside the default judgment, but 63 days after entry of the default judgment itself. In a civil case in which the United States is a party, the notice of appeal must be filed within 60 days of judgment unless the period is tolled by the filing of an appropriate motion under Federal Rules of Civil Procedure 50(b), 52(b), or 59. Fed.R.App.P. 4(a). Appellant’s motion to vacate judgment pursuant to Rule 60(b) did not toll the 60-day period. The appeal was therefore untimely as to the underlying default judgment. The only question open to review is whether the district court abused its discretion in denying appellant’s Rule 60(b) motion. Browder v. Director, Department of Corrections, 434 U.S. 257, 263, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978).

“An order denying relief under Rule 60(b) is an appealable order, but the appeal brings up only the correctness of the order itself. It does not permit the appellant to attack the underlying judgment for error that could have been complained of on direct appeal. Moreover, the denial of a motion to vacate will be reversed only upon a clear showing of an abuse of discretion . ” (citations omitted). Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53, 56 (2d Cir. 1976). See, e. g., Browder v. Director, Department of Corrections, supra; Walker v. Mathews, 546 F.2d 814, 818 (9th Cir. 1976; Pagan v. American Airlines, Inc., 534 F.2d 990, 992-93 (1st Cir. 1976); Burnside v. Eastern Airlines, Inc., 519 F.2d 1127, 1128 (5th Cir. 1975). “[I]n reviewing a lower court’s denial of a motion under Rule 60(b), [the appellate] function is not to determine whether the court was substantively correct in entering the judgment from which relief is sought but is limited to deciding whether the judge abused his discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not shown . . .” Brennan v. Midwestern United Life Insurance Co., 450 F.2d 999, 1003 (7th Cir. 1971).

We therefore do not consider issues raised by appellant that go to the correctness of the underlying default judgment. These include appellant’s contentions that the complaint failed to state a cause of action, that the judgment went beyond the scope of the prayer for relief, that the injunction was not sufficiently specific to satisfy the requirements of Federal Rule of Civil Procedure 65(d) or due process, and that the district court erred in awarding damages.

Appellant’s contentions that are subject to review are meritless. Appellant argues that the district court lacked jurisdiction to enter the default judgment prior to an administrative determination of the validity of her Lucky Sunday Lode claim. But “[u]nder the mining laws Congress has made public lands available to people for the purpose of mining valuable mineral deposits and not for other purposes.” United States v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 1330, 20 L.Ed.2d 170 (1968). See Andrus v. Charlestone Stone Products Co., - U.S. -, 98 S.Ct. 2002, 56 L.Ed.2d 570 (1978). The district court clearly had jurisdiction to determine whether appellant occupied the lands in question in good faith for purposes of mining, and, if the court found appellant had not, to award damages for past trespass and enjoin further occupancy. See United States v. Noqueira, 403 F.2d 816, 824, 825 (9th Cir. 1968). Where the issue is one of the good faith of the occupancy of government property for min[*808] ing uses rather than the validity of the claim, there is no reason to withhold judgment pending an administrative determination of the claim’s validity. See United States v. Haskins, 505 F.2d 246, 253 (9th Cir. 1974).

There was ample evidence to support the district court’s finding that the default was willful and knowing, and that appellant filed the Lucky Sunday Lode claim after the default in bad faith for the purpose of delay.

Affirmed.