F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 3, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
PETER N . GEORG ACA RA KOS,
Plaintiff-Appellant,
No. 06-1223
v. (D.C. No. 03-D-1246 (OES))
(D . Colo.)
U N ITED STA TES O F A M ER ICA,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.
Peter N. Georgacarakos appeals from the denial of his Fed. R. Civ. P. 60(b)
motion. W e have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
I
Appellant is an inmate confined to the custody of the Federal Bureau of
Prisons. On July 9, 2003, appellant filed a complaint asserting various claims
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
under the Federal Tort Claims Act (FTCA) arising out of the alleged loss of books
and a manuscript that occurred when these items were mailed from the prison
where he was confined. Appellant alleged tortious conduct by employees of both
the Federal Bureau of Prisons and the United States Postal Service. The United
States moved to dismiss the complaint for lack of subject matter jurisdiction. The
district court granted the motion and dismissed the action for lack of jurisdiction
on September 7, 2004. This court affirmed the district court’s decision on
August 29, 2005. See Georgacarakos v. United States, 420 F.3d 1185, 1186
(10th Cir. 2005).
Almost a year later, on April 11, 2006, appellant filed a Fed. R. Civ. P.
60(b) motion arguing that the district court should rescind its order of dismissal in
light of a decision issued by the United States Supreme Court on February 22,
2006 in Dolan v. U.S. Postal Service, 126 S. Ct. 1252 (2006). The district court
denied the motion for lack of jurisdiction on April 14. Appellant then filed a
“M otion to Amend or Transfer Pleading” requesting the district court to “construe
his Rule 60(b) motion as a motion appropriate to the legal circumstances, or if the
motion has jurisdiction in the Court of Appeals, to transfer the petition to that
Court.” R., Doc. 65. The district court construed the motion as a motion for
reconsideration and then denied it on April 24. Appellant filed a timely notice of
appeal on M ay 18.
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II
W e review the district court’s denial of a Rule 60(b) motion for abuse of
discretion. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 727 (10th Cir. 1993).
Appellant argues that the district court erred in denying his Rule 60(b)
motion because Rule 60(b)(3) gave the district court jurisdiction to review the
judgment and the Supreme Court’s clarification in the Dolan case gave it the
authority to do so. Appellant is under the mistaken impression that Rule 60(b)(3)
can be used “for a clarification in case law and within two years of final
disposition,” w hich then gives the case “to the district court anew.” A plt. Reply
Br. at 2.
Rule 60(b)(3) states:
On motion and upon such terms as are just, the court may relieve a
party or a party’s legal representative from a final judgment, order,
or proceeding for . . . (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party.
Fed. R. Civ. P. 60(b)(3). M oreover, the rule states that a motion brought pursuant
to 60(b)(3) must be made “not more than one year after the judgment, order, or
proceeding was entered or taken.” Id. Appellant did not allege in his 60(b)
motion that his case should be reopened due to fraud, misrepresentation or other
misconduct of the United States and he did not file the motion within one year of
the entry of final judgment on September 7, 2004. Appellant’s 60(b) motion
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simply focused on the merits of his case and requested that the district court
reopen the case in light of the Dolan decision. R., Doc. 63.
Appellant also asserts that relief is appropriate under Rule 60(b)(6), which
allows a district court to relieve a party from a final judgment for “any other
reason justifying relief from operation of the judgment.” Fed. R. Civ. P. 60(b)(6).
Unless extraordinary circumstances exist, however, Rule 60(b)(6) does not
provide any relief once this court has issued its mandate affirming the district
court’s judgment. See Colo. Interstate Gas Co. v. Natural Gas Pipeline Co.,
962 F.2d 1528, 1534 (10th Cir. 1992).
The district court denied appellant’s Rule 60(b) motion for lack of
jurisdiction. Although it is not technically correct that the district court lacked
jurisdiction over appellant’s Rule 60(b) motion, the court did lack authority to
issue the requested relief under the mandate rule. See Huffman v. Saul Holdings
Ltd. Partnership, 262 F.3d 1128, 1133 (10th Cir. 2001). The mandate rule
requires a district court to comply strictly with the mandate rendered by the
reviewing court. Id. at 1132. “The mandate consists of our instructions to the
district court at the conclusion of the opinion, and the entire opinion that preceded
those instructions.” Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1126
(10th Cir. 2003). Appellant argued in his Rule 60(b) motion that his claims were
related to pre- and post- transmission conduct by government employees, and
that, under Dolan, such conduct does not fall within the postal-matter exception
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for transmission of mail. In our earlier decision, we held that the postal-matter
exception was not limited to claims based on negligent transmission and that the
exception applied to bar appellant’s claims. Because our opinion and mandate
covered the arguments the appellant made in his Rule 60(b) motion, the district
court was bound by the mandate rule and had no authority to re-examine its final
decision. See Proctor & Gamble, 317 F.3d at 1126; Huffman, 262 F.3d at
1132-33.
W hile a change in law can potentially provide the basis for an exception to
the mandate rule, this exception does not apply after the judgment becomes final,
which occurs after this court has disposed of the appeal and the time for a petition
for certiorari has passed. See Ute Indian Tribe v. Utah, 114 F.3d at 1513, 1521
(10th Cir. 1997); Colo. Interstate Gas, 962 F.2d at 1534. This court issued its
decision on August 29, 2005, the mandate issued on October 21, 2005 and the
deadline for filing a petition for certiorari was November 28, 2005. Because the
mandate had issued and the judgment was final, the district court lacked authority
to act on appellant’s Rule 60(b) motion filed on April 11, 2006.
The judgment of the district court is AFFIRM ED. W e remind appellant
that he still owes the filing fee for his prior appeal and he remains obligated to
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pay that fee. Appellant’s motion for leave to proceed in this appeal without
prepayment of costs or fees is DENIED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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