                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         DEC 4 2003
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 THOMAS E. SCHERER,

               Plaintiff-Appellant,                     No. 03-3137
          v.                                            (D. Kansas)
 KENT HILL, in his individual                  (D.C. No. 02-CV-2043-KHV)
 capacity as Director of the Kansas City
 VA Medical Center and former
 Director of the Wichita, Kansas VA
 Regional Office; WILLIAM EMMOT,
 Dr., Chief of Staff Kansas City VA
 Medical Center; WAYNE HILL, in his
 individual capacity as Adjudication
 Officer Wichita, Kansas VA Regional
 Office,

               Defendants-Appellees.




                           ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, Circuit Judges.


      After examining appellant’s brief and the appellate record, this court has

determined unanimously that oral argument would not materially assist the


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
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.

      Proceeding pro se, Thomas E. Scherer appeals the district court’s decisions

denying his Fed. R. Civ. 60(b) motion to vacate the judgment entered on

September 20, 2002, and the district court’s decision denying his Motion to

Reconsider Memorandum and Order Overruling A Motion to Reinstate A Case.

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

unanimously that oral argument would not aid in the disposition of this appeal.

See Fed. R. App. P. 34(a)(1)(c). The case is therefore ordered submitted without

oral argument. Moreover, after reviewing the record and the applicable law, we

further conclude for substantially the same reasons set forth by the district court

that the court did not abuse its discretion in denying Mr. Scherer’s motions.



                                 I. BACKGROUND

      Mr. Scherer, an honorably discharged Navy veteran, filed this pro se action

against Veterans Administration officials, challenging the denial of disability

benefits. Mr. Scherer alleged that he contracted a chronic skin condition during

his service and that he is entitled to a disability rating of 30 percent and

corresponding benefits beginning in 1976. Mr. Scherer further alleged that “the

Veterans Administration provides no opportunity for a claim to be decided by a


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jury trial and that failure is in violation of the United States Constitution right to

a jury trial for claims of equity.” Rec. doc. 1, at 4 (Complaint, filed Jan. 31,

2002).

         On September 17, 2002, the district court issued a memorandum and order

dismissing Mr. Scherer’s complaint. The court reasoned that “federal law

regarding veterans’ benefits provides that decisions regarding veterans’ benefits

are unreviewable in the federal district courts.” Scherer v. Hill, No. 02-2043-

KHV, 2002 WL 31109699, at *1 (D. Kan. Sept. 17, 2002) (internal quotation

marks omitted). The court added that Mr. Scherer had not shown that he could

sue the defendants for actions taken in their official capacities. Id. The court

entered a final judgment in favor of the defendants on September 20, 2002.

         Mr. Scherer filed a separate action against the United States alleging

similar claims. In that case, the district court also dismissed the complaint

See Scherer v. United States, No. 01-2428-JWL, 2002 WL 299315 (D. Kan. Feb.

15, 2002). Mr. Scherer appealed that dismissal, and this Court affirmed in part,

and vacated and remanded in part. In particular, we concluded that the district

court had subject matter jurisdiction to consider Mr. Scherer’s constitutional

challenge to 28 U.S.C. § 1346(d), which provides that “ [t]he district courts shall

not have jurisdiction under this section of any civil action or claim for a pension.”




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See 28 U.S.C. § 1346; Scherer v. United States, No. 02-3067, 2003 WL 191463

(10th Cir. Jan. 29, 2003).

      On February 4, 2003, Mr. Scherer filed a motion to vacate the September

20, 2002 judgment pursuant to Fed. R. Civ. P. 60(b). Mr. Scherer invoked this

court’s decision in the related case—Scherer v. United States, No. 02-3067

—arguing that, as in that case, the claims regarding the constitutionality of

§ 1346(d) should be allowed to proceed.

      The district court denied Mr. Scherer’s Rule 60(b) motion. See Scherer v.

Hill, 213 F.R.D. 431 (D. Kan. 2003). The court reasoned that the motion was

untimely. See id. at 433-34 (“A Rule 60(b)(1) motion cannot be used to challenge

a substantive ruling of the Court unless it is filed within the time frame required

for filing a notice of appeal. The Clerk entered judgment on September 20, 2002

and plaintiff did not file his Rule 60(b) motion until February 4, 2003.”) (internal

quotation marks and citations omitted). The court also observed that Mr. Scherer

“ha[d] not alleged an obvious error of law within the meaning of Rule 60(b)(1).”

Id. at 434. Finally, the court reasoned, Mr. Scherer was not entitled to relief

under Fed. R. Civ. P. 60(b)(6). See id. at 434-35 (“[T]he broad power granted by

clause (6) is not for the purpose of relieving a party from free, calculated and

deliberate choices he has made. A party remains under a duty to take legal steps

to protect his own interests. [Mr. Scherer] voluntarily elected not to appeal the



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Court’s judgment in this case. Rule 60(b)(6) relief is therefore inappropriate.”)

(internal quotation marks and citations omitted).

         Mr. Scherer then filed a Motion to Reconsider Memorandum and Order

Overruling a Motion to Reinstate The Case. The district court denied that motion

as well. See Scherer v. Hill, No. 02-2043-KHV, 2003 WL 21011361 (May 1,

2003).



                                   II. DISCUSSION

         On appeal, Mr. Scherer challenges the district court’s denial of his Rule

60(b) motion to vacate and his Motion to Reconsider Memorandum and Order

Overruling a Motion to Reinstate The Case. “We review the district court’s

denial of a Fed. R. 60(b) motion to vacate for an abuse of discretion,” mindful

that Rule 60(b) relief “is extraordinary and may only be granted in exceptional

circumstances.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th

Cir. 2000) (internal quotation marks omitted). For substantially the same reasons

set forth by the district court, we discern no abuse of discretion here. Because a

Rule 60(b) motion cannot be used as a substitute for an appeal, Mr. Scherer’s

challenge to the dismissal of his complaint was untimely. Orner v. Shalala, 30

F.3d 1307, 1309-10 (10th Cir. 1994). Moreover, as the district court observed

“based on the Tenth Circuit remand in Scherer v. United States, supra, [Mr.



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Scherer] has an available forum for his constitutional challenge to 28 U.S.C. §

1346(d). [Mr. Scherer] has not shown why he is entitled to challenge the same

statutory provision in multiple cases, or how he will be prejudiced if that

opportunity is denied him.” Scherer, 213 F.R.D. at 435.



                                III. CONCLUSION

      Accordingly, we AFFIRM the district court’s decisions denying Mr.

Scherer’s Rule 60(b) motion to vacate and his Motion to Reconsider

Memorandum and Order Overruling a Motion to Reinstate the Case.



                                       Entered for the Court,



                                       Robert H. Henry
                                       Circuit Judge




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