Kemper v. Barnhart , 193 F. App'x 735 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 14, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
GARY A LLEN KEM PER,
Plaintiff-Appellant,
v. No. 05-1459
(D.C. No. 03-CV-58-PSF-PAC)
JO A NN E B. BA RN HA RT, (D . Colo.)
Commissioner of Social Security,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.
In this case, pro se plaintiff Gary Allen Kemper mounts his second
challenge to the denial of his application for disability-insurance benefits.
He is appealing an order of the district court denying his motion for relief from
judgment. W e exercise jurisdiction and affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
The Commissioner denied M r. Kemper’s application for disability benefits
on August 27, 2002. The district court upheld the Commissioner’s ruling on
January 9, 2004, and this court affirmed, Kemper v. Barnhart, 118 F.App’x 360,
362 (10th Cir. 2004), cert. denied, 544 U.S. 1041 (2005). On August 5, 2005,
after the Supreme Court denied his petition for a writ of certiorari, M r. Kemper
filed a motion for a new trial in the district court.
The district court treated the filing as a motion to alter or amend judgment
under Rule 60(b) and denied it, finding “no justification for granting the motion,
including no showing of any newly discovered evidence that would form the basis
for such reconsideration.” Aplee. Supp. App. at 12 (Order, Aug. 22, 2005). The
district court encouraged M r. Kemper to reapply for benefits if he believed that
updated information would prove his disability status. M r. Kemper now appeals
the district court’s ruling.
“Rule 60(b) relief is extraordinary and may only be granted in exceptional
circumstances.” Zurich N. Am. v. M atrix Serv., Inc., 426 F.3d 1281, 1289
(10th Cir. 2005) (internal quotation marks omitted). This court reviews a denial
of a Rule 60(b) motion for abuse of discretion, reversing only if we find
“a complete absence of a reasonable basis” and if we are “certain that the decision
is wrong.” Id. (internal quotation marks and ellipses omitted).
As applicable to this case, the rule allows the district court to relieve a
party from a final judgment on a showing of “newly discovered evidence which
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by due diligence could not have been discovered in time to move for a new trial
under Rule 59(b)” or “any other reason justifying relief from the operation of the
judgment.” Fed. R. Civ. P. 60(b)(2), (6). A motion based on newly discovered
evidence must be brought “not more than one year after the judgment, order, or
proceeding was entered or taken.” Id.In his motion M r. Kemper argued that he wished to present newly
discovered evidence relevant to his social security claim. He filed the motion,
however, more than a year after entry of judgment. Further, the evidence
M r. Kemper proffered had apparently been available for several years, so that it
cannot be considered newly discovered. And our review of the record reveals no
other reasonable basis for granting a relief from judgment.
Because we discern no abuse of discretion in the district court’s order
denying postjudgment relief, we AFFIRM . M r. Kemper’s motion to proceed in
forma pauperis and his request for appointment of counsel are denied.
Entered for the Court
Harris L Hartz
Circuit Judge
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