                                                                       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not binding precedent, except under the doctrines of law of the case, res judicata,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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