F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS DEC 30 1999
TENTH CIRCUIT PATRICK FISHER
Clerk
UVALDO J. VELASQUEZ,
Plaintiff-Appellant,
v.
No. 99-2243
WILLIAM J. CLINTON, President (D.C. No. CIV-98-291-SC/LCS)
United States of America; GARY (New Mexico)
JOHNSON, Governor of New Mexico,
in their capacities to faithfully execute
the law,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
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 cause 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This order and judgment is not binding precedent, except under the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, or 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.
Plaintiff Uvaldo Velasquez brought this action pro se claiming he is a
direct and sole descendant of Pedro Martin Serrano, the original land-grant
grantee to the Piedre Lumbre Land Grant located within the State of New Mexico.
Although he claims he was only able to prove his lineage within the last year, Mr.
Velasquez has believed for over forty years that he has the right to sole ownership
of this property as Serrano’s sole descendant. Mr. Velasquez’ complaint states
that New Mexico and United States officials have conspired to divide, sell, and
occupy this land in violation of his property and civil rights.
Construing the complaint liberally, the district court determined Mr.
Velasquez was stating a quiet title cause of action, a civil rights cause of action
against Gary Johnson, Governor of New Mexico, and a Bivens cause of action
against William Clinton, President of the United States. Assuming without
deciding that Mr. Velasquez could overcome the immunity issues involved, the
district court held all causes of action barred by their respective statutes of
limitation. The district court dismissed Mr. Velasquez’ complaint with prejudice
on March 10, 1999. On March 29, Mr. Velasquez filed a “motion for
reconsideration” which the district court treated as a motion filed pursuant to Fed.
R. Civ. P. 60(b) since it was filed more than ten days after March 10. That
motion was denied on July 12, and Mr. Velasquez filed this appeal on August 2.
The Rule 60(b) motion filed by Mr. Velasquez did not affect the finality of
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the district court’s original judgment entered on March 10. See Fed. R. Civ. P.
60(b). A Rule 60(b) motion can be granted only if the district court finds a
problem in the proceedings such as mistake, excusable neglect, or fraud. Id. Mr.
Velasquez’ appeal from the denial of the Rule 60(b) motion raises for review only
the district court’s denial of that motion, not the underlying judgment itself. See
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1992). By not filing
a timely notice of appeal from the district court’s March 10 order, Mr. Velasquez
has waived his appeal of that order. 1 See V.T.A., Inc. v. AIRCO, Inc., 597 F.2d
220, 223-24 & n.7 (10th Cir. 1979). However, because Mr. Velasquez did file a
timely notice of appeal of the district court’s denial of his Rule 60(b) motion, we
thereby have jurisdiction to review that denial. 2 See id. at 223. We review the
1
Mr. Velasquez would have been able to appeal the merits of the district
court’s March 10 order had he filed a timely notice of appeal. Mr. Velasquez
stated in his Rule 60(b) motion that he was objecting to the errors of law
committed by the district court in its final judgment “to preserved [sic] the issue
for purposes of appeal.” Rec., Doc. 33, ¶¶ 1, 2, 5. The motion he filed was
deficient as a notice of appeal, however, because it failed to name the court to
which the appeal would be taken. See Fed. R. App. P. 3(c)(1)(C). Despite Mr.
Velasquez’ pro se status, we cannot read the motion that he filed as a notice of
appeal. See, e.g., Smith v. Barry, 502 U.S. 244, 248 (1992) (document must give
notice required in Rule 3 to be effective as a notice of appeal); Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir. 1994) (“[A]ppellant’s pro se status does not
excuse the obligation . . . to comply with fundamental requirements of the Federal
Rules of Civil and Appellate Procedure.”).
2
Mr. Velasquez has filed a motion with this court to disallow the
appearance of the New Mexico Attorney General due to her defense of state
officers involved in an allegedly seditious conspiracy to allow occupation of the
Piedre Lumbre Land Grant. This argument is patently without merit and the
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denial of a Rule 60(b) motion for an abuse of discretion. See id.
Mr. Velasquez first claims the district court made a substantive mistake in
determining the causes of action stated in his complaint. We construe this claim
under Rule 60(b)(1). See, e.g., Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577
(10th Cir. 1996). Mr. Velasquez argues his complaint did not state causes of
action against the United States or the New Mexico governments as entities, but
rather that he was suing the President of the United States and the Governor of
New Mexico for being “derelict in their duties” by allowing insurgent claims
upon his property. Since there is no private cause of action for “dereliction of
duty” by either of these officials, the district court did not commit any mistake of
law or fact when interpreting the complaint. Moreover, a Bivens action against
the federal defendant and a civil rights action against the state defendant closely
approximate the private cause of action Mr. Velasquez seeks. 3 Since those two
causes of action were analyzed by the district court in its original judgment, the
district court was correct in denying the Rule 60(b) motion on that basis.
Mr. Velasquez also claims the statutes of limitation should not be held
against him for two reasons: (1) the state and federal governments took advantage
motion is DENIED.
3
We note the government suggests in its brief that a quiet title action,
while inappropriate against the United States, may be appropriate against the
present private owners of the land at issue. See Aple’s Br. at 10. We take no
position on this suggestion.
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of the disarray of public records to fulfill their furtive designs for land parcels;
and (2) the defendants concealed his injuries from him via disorganized public
records, making his injury inherently unknowable. Reading Mr. Velasquez’ Rule
60(b) motion liberally, this claim can be construed as brought for fraud and
misrepresentation committed on the court under Rule 60(b)(3).
Relief under Rule 60(b)(3) may be granted only when the motion is
substantiated by clear and convincing evidence that the defendants “acted with
‘an intent to deceive or defraud the court,’ by means of a ‘deliberately planned
and carefully executed scheme.’” Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th
Cir. 1999). The burden is on the movant to establish fraud and to show the
movant would have had a good claim or defense in the main action. See Wilkin v.
Sunbeam Corp., 466 F.2d 714, 717 (10th Cir. 1972). Mr. Velasquez’ arguments
regarding fraud were general in nature and lacked specific allegations against the
named defendants. The district court certainly did not abuse its discretion by
denying the motion on this basis as well. See, e.g., Jennings v. Hicklin, 587 F.2d
946, 948 (8th Cir. 1978).
The district court order of July 12 is AFFIRMED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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