concurring in part, and dissenting in part:
I disagree with the majority’s holding that we do not have jurisdiction to consider the district court’s order dismissing the action for two reasons which I will briefly explain later. Sinee the appellant waived his right to seek review of the dismissal order, however, I would affirm the district court’s dismissal. I also disagree with the majority’s affirmance of the Rule 11 sanctions.
This court has two grounds for jurisdiction over McGregor’s appeal from the order granting him voluntary dismissal. First, the August 3, 1989 district court order granting the voluntary dismissal was not a final judgment, as the district court “RE-TAINCED] JURISDICTION for the purpose of entertaining a proper application for costs and/or attorney’s fees.” R-43-1 (emphasis in original). This order only became final when the defense made its application for fees and costs, and the court granted it.1 McGregor’s appeal was hence timely.
There is a second possible basis for jurisdiction to vacate the grant of voluntary dismissal. The Eleventh Circuit has held that courts have the authority to recharac-terize a Rule 59(e) motion to alter or amend the judgment as a Rule 60(b) motion to reopen the case. Finch v. City of Vernon, 845 F.2d 256, 258 (11th Cir.1988). Rule 60(b) motions can be made for up to a year after judgment. The court granted the voluntary dismissal on August 3, 1989, and the plaintiff’s motion to amend was filed on April 18, 1990. If the motion to amend is recharacterized as a Rule 60(b) motion, the appeal is timely.
McGregor arguably does have a Rule 60(b) motion because he did not anticipate being assessed in excess of $10,000 in attorney’s fees and sanctions when he voluntarily dismissed his case, agreeing only to pay costs. As an appeal could not have been taken from the August 3, 1989 order granting voluntary dismissal because it was not final at that time, the district court could have justifiably exercised its discretion by recharacterizing the later Rule 59(e) motion as a Rule 60(b) motion, and vacating the voluntary dismissal under Rule 60(b). This court in turn has jurisdiction to review for an abuse of discretion the district court’s failure to recharacterize the Rule 59(e) motion as a Rule 60(b) motion, and thus, its failure to reinstate the case.
*1024McGregor has waived this appeal, however, as he never filed a motion in the district court to withdraw the voluntary dismissal. Although he had the right to withdraw his voluntary dismissal within “a reasonable period of time,” Lau v. Glendora Unified School Dist., 792 F.2d 929, 931 (9th Cir.1986), he did not make a request to do so until the last page of his Rule 59(e) motion for rehearing, and then only as an alternative to the assessment of attorney’s fees and sanctions. It is well within the discretion of the district court to deny an argument made for the first time in a motion for rehearing. American Home Assur. v. Glenn Estess & Assoc., Inc., 763 F.2d 1237, 1239 (11th Cir.1985); Hashwani v. Barbar, 822 F.2d 1038, 1041 (11th Cir.1987). McGregor could have moved to withdraw his voluntary dismissal at a number of times before the motion for rehearing, for example, when the August 3, 1989 order retaining jurisdiction to assess attorney’s fees was issued, or when the defendant filed its briefs requesting attorney’s fees and sanctions. However, he did not. The district court thus did not abuse its discretion when it did not grant the request to withdraw made for the first time at the motion for rehearing.
I also dissent from the panel’s affirmance of the Rule 11 sanctions for two reasons. First, the sanctions are not supportable. Second, even if they were, they should not have been assessed against Mr. McGregor, the plaintiff, but against Mr. Cullen, the attorney who filed the pleading which the district court found frivolous.
F.R.Civ.P. 11 states that a
pleading, motion, or other paper ... to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry ... [must be] well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose.
As there is a colorable claim that Florida law gave McGregor some property rights in his employment, the assertion of Count I may have been “warranted ... by a good faith argument for the extension ... of existing law.” Thus, Rule 11 sanctions should not have been assessed.
State law determines the property interest a state employee may have in his or her employment. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), further provides that “[a] person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim for entitlement to the benefit and that he may invoke at a hearing.”
McGregor’s employment contract incorporates applicable Florida law. It states:
All provisions contained in this agreement are subject and conditioned upon compliance with all general laws or special laws of the State of Florida, or local ordinances of the Board of County Commissioners. Such laws shall take precedence over any part or portion or provision as contained herein in all instances. (Emphasis supplied).
Florida’s “Whistleblower Act of 1986,” Fla.Stat. 112.3187 (1991) is a law that takes precedence over the employment contract. It states in part:
(4) ACTIONS PROHIBITED.—
(a) An agency or independent contractor shall not take any adverse personnel action against an employee for disclosing information pursuant to the provisions of this section.
[[Image here]]
(5) NATURE OF INFORMATION DISCLOSED. — The information disclosed under this section shall include:
(a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an agency or independent contractor that creates and presents a substantial and specific danger to the public’s health, safety and welfare.
(b) Any act or suspected act of malfeasance, misfeasance, gross waste of funds, or neglect of duty committed by an agency.
*1025[[Image here]]
(7) EMPLOYEES AND PERSONS PROTECTED. — This section shall protect employees and persons who disclose information on their own initiative in a written and signed complaint; ...
(8) REMEDIES. — Any employee who is discharged, disciplined, or subject to other adverse personnel action by an agency or independent contractor, or any person whose rights or interests are adversely affected by an agency or independent contractor, as a result of disclosing information under this section may, after exhausting all available contractual or administrative remedies, bring a civil action within 90 days of the final administrative determination or the violation.
This law arguably provides a rule or “mutually explicit understanding,” providing McGregor some form of property interest in McGregor’s employment. It provides him substantive rights and protection when he engages in some forms of activity, rights that “take precedence” over the “at will” nature of the employment contract.
The plaintiff also asserts that the Palm Beach County Merit System provided a right to a hearing and to have his termination reviewed by the Personnel Review Board. This factual assertion was not made in the complaint, but in the Motion for Rehearing and for Amendment of Judgment, filed April 18, 1990. If true, it may also be a source of property rights in the employment contract.
Admittedly, the argument that such laws and policies provide some property rights to McGregor in his employment may not prevail; however, it is not so far-fetched as to warrant Rule 11 sanctions.
Even if Rule 11 sanctions were to be assessed, however, they should not have been assessed against McGregor but against his lawyer. Our court has not been presented the precise issue but the Tenth Circuit has held, “Rule 11 directs that the sanction should fall upon the individual responsible for the filing of the offending document.” Chevron, U.S.A., Inc. v. Hand, 763 F.2d 1184, 1187 (10th Cir.1985) (emphasis supplied).2 It makes common sense that a client should not be sanctioned if his lawyer commits a Rule 11 offense by filing a frivolous pleading. There is no evidence that Count I was initiated or pursued in any way by Mr. McGregor, the represented party.
Accordingly, although I would affirm the district court’s order granting the voluntary dismissal, I would reverse the assessment of Rule 11 sanctions against Mr. McGregor, the represented party.
. I find Lau v. Glendora Unified School Dist., 792 F.2d 929 (9th Cir.1986) persuasive. The Ninth Circuit stated:
The language of Rule 41(a)(2) indicates that the dismissal of the action is contingent both "upon order of the court” and upon such terms and conditions as the court deems proper.” In other words, the voluntary dismissal cannot take effect until a court order has been entered and the terms and conditions imposed by the court are complied with. This grants to the plaintiff the option to refuse the voluntary dismissal if the conditions imposed are too onerous.
Id. at 930 (emphasis in original; citations omitted). Lau held that a plaintiff seeking a voluntary dismissal must be provided “a reasonable period of time within which to refuse the conditional voluntary dismissal by withdrawing his motion for dismissal or to accept the dismissal despite the imposition of conditions.” Id. at 931 (emphasis added).
. The proposed new Rule 11 also states that “[mjonetary sanctions may not be awarded either on motion or on the court’s initiative against a represented party unless it is determined to be responsible for a violation of subdivision (b)(1)." Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and the Federal Rules of Evidence, Proposed Amendments to the Federal Rules of Civil Procedure 11(c)(2)(A) (August 1991).