Opinion
Civil Action No. 02-2043-KHV
May 1, 2003.
MEMORANDUM AND ORDER
Thomas E. Scherer filed suit against Kent Hill, William Emmot and Wayne Hill, employees of the Department of Veteran Affairs. This matter comes before the Court on plaintiff's Motion To Reconsider Memorandum And Order Overruling A Motion To Reinstate The Case (Doc. #51) filed March 19, 2003. For reasons stated below, plaintiff's motion is overruled.
Standards For Rule 60(b) Motions
The Court has discretion whether to grant a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. W. Res., Inc., 929 F. Supp. 1349, 1360 (D.Kan. 1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir. 1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Serv., 871 F. Supp. 1331, 1333 (D.Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). The Court may not assume the role of advocate for a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Factual Background
Plaintiff is an honorably discharged veteran who served in the United States Navy from 1972 through 1975. Plaintiff states that during his service, he contracted a chronic skin condition. Plaintiff applied for disability benefits with the Veterans Administration ("VA"). On January 3, 2001, the VA approved plaintiff's claim for disability benefits, gave him a 10 per cent disability rating, and awarded him benefits retroactive from 1995 with a future monthly benefit of $101. Plaintiff asserts that the VA should award him benefits retroactive from 1976 and that his disability rating should be 30 per cent. Plaintiff filed his claim in federal court because "the Veterans Administration provides no opportunity for a claim to be decided by a jury trial and that failure is in violation of the United States Constitution right to a jury trial for claims of equity." Complaint (Doc. #1) filed January 30, 2002 ¶ 12. Plaintiff seeks compensatory and punitive damages, as well as injunctive relief.
On September 19, 2002, the Court sustained defendants' motion to dismiss, both on the merits and because plaintiff had not timely responded to the motion. See Memorandum And Order (Doc. #45) at 2. As to the merits, the Court noted:
Plaintiff has not specifically addressed the jurisdictional arguments presented in defendant's motion to dismiss. In particular, plaintiff has not shown that he can sue federal employees for actions taken in their official capacities, or that he can seek review of VA disability decisions in federal district court. Plaintiff's action against VA employees for actions as agents of the United States is in fact an action against the United States. See Weaver v. United States, 98 F.3d 518, 520 (10th Cir. 1996). For the reasons outlined in Defendant's Memorandum In Support Of Motion To Dismiss (Doc. #25) filed June 7, 2002, the Court lacks subject matter jurisdiction to hear plaintiff's claims. As the Honorable John W. Lungstrum explained in a virtually identical case which plaintiff brought earlier this year, "federal law regarding veterans' benefits provides that decisions regarding veterans' benefits are unreviewable in the federal district courts. . . ." Scherer v. United States, No. 01-2428-JWL, 2002 WL 299315, at *1 (D.Kan. Feb. 15, 2002); see 38 U.S.C. § 511(a) (as to law and facts necessary to decision that affects provision of veteran benefits, VA Secretary's determination "shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise").
Memorandum And Order (Doc. #45) at 3 (footnote omitted). On September 20, 2002, the Clerk entered judgment in favor of defendants. See Judgment In A Civil Case (Doc. #46). Plaintiff did not appeal.
As noted in the Court's Memorandum And Order (Doc. #45), plaintiff filed a separate suit against the United States, asserting virtually identical claims to the ones he asserts in this case. In the action against the United States, the Honorable John W. Lungstrum dismissed plaintiff's claims, and plaintiff appealed. See Scherer v. United States, No. 01-2428-JWL, 2002 WL 299315, at *1 (D.Kan. Feb. 15, 2002). On January 29, 2003, in Scherer v. United States, the Tenth Circuit held that the district court had jurisdiction over Scherer's constitutional challenge to 28 U.S.C. § 1346(d), and that the claim should not have been dismissed. See Scherer v. United States, 55 Fed. Appx. 517, 2003 WL 191463 (10th Cir. Jan. 29, 2003).
Section 1346(d) provides that "[t]he district courts shall not have jurisdiction under this section [actions against United States] of any civil action or claim for a pension."
On February 4, 2003, based on the Tenth Circuit ruling in Scherer v. United States, plaintiff filed a motion to vacate the Court's judgment in this case. In particular, plaintiff sought to reinstate his claim that 28 U.S.C. § 1346(d) is unconstitutional because it violates a party's right to a jury trial for equity claims, see Civil Complaint (Doc. #1) ¶ 14, and "[t]he administrative process as used by the Veterans Administration provides no opportunity for a claim to be decided by a jury trial and that failure is in violation of the United States Constitution right to a jury trial for claims of equity." Id. ¶ 12.
On March 12, 2003, the Court overruled plaintiff's motion to vacate. See Memorandum And Order (Doc. #50). The Court held that (1) the motion was untimely because plaintiff did not file it within the time frame required for filing a notice of appeal; (2) relief under Rule 60(b)(1) was not appropriate because plaintiff had not alleged any obvious error of law; (3) relief under Rule 60(b)(6) was not appropriate because plaintiff had not satisfied the standards for relief under Rule 60(b)(1), plaintiff voluntarily elected not to appeal the Court's judgment, and plaintiff was pursuing an identical claim in a separate lawsuit; and (4) even if plaintiff could invoke Rule 60(b), the Court would dismiss his complaint for failure to state a claim on which relief may be granted. See id. at 4-6.
Analysis
Plaintiff first argues that his Rule 60(b) motion was timely because he filed it within one year of the Court's judgment. As explained previously, a Rule 60(b) motion is not intended to be a substitute for a direct appeal. See Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996). A Rule 60(b)(1) motion cannot be used to challenge a "substantive ruling" of the Court unless it is filed within the time frame required for filing a notice of appeal. Id. at 578. The Tenth Circuit "has held, without qualification, that `a mistake of law cannot be reached under [Rule] 60(b)(1) where [as here] no notice of appeal was timely filed from the order in which the mistake is alleged to have occurred, and the time for filing such a notice of appeal had expired when the [Rule] 60(b) motion was filed." Orner v. Shalala, 30 F.3d 1307, 1309-10 (10th Cir. 1994) (quoting Morris v. Adams-Millis Corp., 758 F.2d 1352, 1358 (10th Cir. 1985)). Because plaintiff did not file his Rule 60(b) motion until more than four months after the Clerk entered judgment, the Court correctly overruled his motion as untimely.
Plaintiff next argues that any mistake of law by the court is an "extraordinary event" such that relief is available under Rule 60(b). In the Tenth Circuit, however, relief under Rule 60(b)(1) is available only for obvious errors of law or fact. See Van Skiver, 952 F.2d at 1244. Here, plaintiff argues that the Court misapplied the law which is not a recognizable ground of relief under Rule 60(b). See id. (challenge to legal correctness of district court's judgment not proper under Rule 60(b); party must raise such challenges under Rule 59(e) or on appeal); Rojas v. Am. Postal Workers Union, No. 94-1083-JTM, 1998 WL 288665, at *1 (D.Kan. May 5, 1998) (argument that court misapplied law or misunderstood party's position not properly brought under Rule 60(b)); see also Alvestad v. Monsanto Co., 671 F.2d 908, 912-13 (5th Cir.) (relief under Rule 60(b)(1) limited to "perfunctory correction" of obvious errors of law), cert. denied, 459 U.S. 1070 (1982). For reasons explained in the Court's prior order, plaintiff has not alleged any obvious error of law within the meaning of Rule 60(b)(1). See Memorandum And Order (Doc. #50) at 5.
Plaintiff does not challenge the Court's ruling that relief under Rule 60(b)(6) is not available in this case. See Memorandum And Order (Doc. #50) at 6.
Finally, plaintiff's motion to reconsider also is without merit because plaintiff did not file a reply brief in response to defendants' opposition brief. In particular, plaintiff did not respond to defendants' assertion that even if the Court had substituted the United States for plaintiff's three individual defendants, plaintiff's complaint fails to state a claim on which relief may be granted. See Memorandum And Order (Doc. #50) at 5-6 n. 2. A motion to reconsider is not appropriate to ask the Court to revisit issues already addressed or to hear new arguments that could have been presented originally. See Van Skiver, 952 F.2d at 1243.
IT IS THEREFORE ORDERED that plaintiff's Motion To Reconsider Memorandum And Order Overruling A Motion To Reinstate The Case (Doc. #51) filed March 19, 2003 be and hereby is OVERRULED.