                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         OCT 16 2002
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


LAWRENCE L. KELLY,

             Plaintiff - Appellant,
                                                       No. 02-3108
      v.                                        D.C. No. 01-CV-4118-RDR
                                                       (D. Kansas)
JUDGE EARL E. O’CONNOR,
deceased, and the UNITED STATES
DISTRICT COURT OF KANSAS,

            Defendants - Appellees.




                           ORDER AND JUDGMENT           *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to grant the appellant’s request for a decision on the briefs without

oral argument. See Fed. R. App. P. 34(f); 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        This order and judgment is not binding precedent, except under the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 res judicata, collateral estoppel, and law of the case. 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.
                                 I. BACKGROUND

      Proceeding pro se, the plaintiff Lawrence L. Kelly filed this action against

a deceased federal district judge and the United States District Court for the

District of Kansas. Mr. Kelly challenged Judge Earl E. O’Connor’s adjudication

of a prior case, arguing that the judge “allowed illegal evidence,” “used a[n]

illegal jury,” improperly limited cross-examination, and improperly denied a

motion for a mistrial. Aplt’s Br. at 2.

      On September 26, 2001, the district court dismissed Mr. Kelly’s

complaint for failure to state a claim. The court also concluded that Mr. Kelly’s

action was frivolous.

      Mr. Kelly did not file a timely appeal of the district court’s order of

dismissal. Instead, he filed the following motions in the district court: (1) a

Motion for Reconsideration and for a New Trial (filed on October 30, 2001), and

(2) a Motion for Bench and Bar Committee Review and Explication (filed on

December 17, 2001). The district court denied both of these motions: the first in

an order filed on October 30, 2001, and the second in an order filed on February

4, 2002.




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       As to the latter motion, the court noted that “[i]t is difficult to determine

what the plaintiff is seeking from this motion.” Rec. doc. 15, at 1 (District Court

Order, filed Feb. 4, 2002). Construing Mr. Kelly’s motion as one for relief from

the judgment pursuant to Fed. R. Civ. P. 60(b), the court noted that Mr. Kelly had

failed to establish good grounds for such relief.   See generally Cashner v.

Freedom Stores, Inc. , 98 F.3d 572, 576 (10th Cir. 1996) (noting that grounds for

relieving a party from a judgment under Rule 60(b) include “mistake,

inadvertence, surprise, or excusable neglect” or “any other reason justifying relief

from the operation of the judgment”) (quoting Fed. R. Civ. P. 60). Additionally,

the court reasoned that if Mr. Kelly was requesting referral of his case to a bench

and bar committee, “[t]he court has no power or authority to transfer this case to a

nonjudicial body for action.” Rec. doc. 15, at 1. (Dist. Ct. Order, filed Feb. 4,

2002). The court further explained that if Mr. Kelly simply wished to have the

committee consider his complaints, he could file such a request directly with the

committee, through the Kansas Bar Association.

       Mr. Kelly filed a notice of appeal on March 19, 2002. He seeks to proceed

in forma pauperis.



                                     II. DISCUSSION




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       In order to proceed in forma pauperis in this appeal, Mr. Kelly “must show

a financial inability to pay the required filing fees and the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). For the

reasons set forth below, we conclude that Mr. Kelly has failed to set forth a

reasoned, nonfrivolous argument. Therefore, we deny his motion to proceed in

forma pauperis and dismiss this appeal.

       As a preliminary matter, we note that, because Mr. Kelly did not file a

notice of appeal until March 19, 2002, we may review only the district court’s

denial of Mr. Kelly’s motion for bench and bar committee review.        See Fed. R.

App. P. 4(a)(1)(b) (“When the United States . . . is a party, the notice of appeal

may be filed by any party within 60 days after the judgment or order appealed

from is entered.”). Because the district court’s prior decisions were entered more

that sixty days before Mr. Kelly filed his notice of appeal, we lack jurisdiction to

review them. See Firestone Tire & Rubber Co. v. Risjord        , 449 U.S. 368, 379

(1981) (holding that once an appellate court determines a notice of appeal to be

untimely, the court “lacks discretion to review the merits);    Senjuro v. Murray , 943

F.2d 36, 38 (10th Cir. 1991) (dismissing appeal because the notice of appeal was

not timely filed).




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       As to the motion for bench and bar committee review, we conclude that Mr.

Kelly has failed to establish that the district court erred in its analysis. We view

his motion in the same two ways as did the district court.

       First, viewing Mr. Kelly’s motion under Rule 60(b), we may

review the district court’s denial relief only for an abuse of discretion.       See

Massengale v. Okla. Bd. of Exam’rs in Optometry          , 30 F.3d 1325, 1330 (10th

Cir.1994). Moreover, “[r]elief under Rule 60(b) is extraordinary and may

only be granted in exceptional circumstances.”        Bud Brooks Trucking, Inc. v. Bill

Hodges Trucking Co. , 909 F.2d 1437, 1440 (10th Cir. 1990). We discern no such

exceptional circumstances here. Mr. Kelly’s complaint seeks to attack the

defendant judge’s decisions in a prior case. The proper remedy for such alleged

errors is a direct appeal, not a subsequent collateral attack on the judgment.         See

Otasco, Inc. v. Mohawk Rubber Co. (In re Otasco, Inc.)         , 18 F.3d 841, 843 n.1

(10th Cir. 1994) (noting that party’s failure to fail a direct appeal precluded a

subsequent challenge to an order).

       Second, viewing Mr. Kelly’s motion as one for referral of the case to the

Kansas Bar Association, we agree with the district court that it lacked authority to

transfer the case to a non-judicial body for final adjudication.       See generally

Montoya v. Chao , 296 F.3d 952, 955 (10th Cir. 2002) (“Federal courts are courts

of limited jurisdiction and, as such, must have a statutory basis to exercise


                                              -5-
jurisdiction .”). Although, Mr. Kelly may pursue his complaints with officials of

the Kansas bar, here, the proper disposition of such complaints is not properly

before this court



                                III. CONCLUSION

      Accordingly, we DENY Mr. Kelly’s motion to proceed in forma pauperis

and DISMISS this appeal.



                               Entered for the Court,



                                Robert H. Henry
                                Circuit Judge




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