                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        July 14, 2006
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    GARY A LLEN KEM PER,

                Plaintiff-Appellant,

    v.                                                   No. 05-1459
                                                (D.C. No. 03-CV-58-PSF-PAC)
    JO A NN E B. BA RN HA RT,                             (D . Colo.)
    Commissioner of Social Security,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.




         In this case, pro se plaintiff Gary Allen Kemper mounts his second

challenge to the denial of his application for disability-insurance benefits.

He is appealing an order of the district court denying his motion for relief from

judgment. W e exercise jurisdiction and affirm.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
       The Commissioner denied M r. Kemper’s application for disability benefits

on August 27, 2002. The district court upheld the Commissioner’s ruling on

January 9, 2004, and this court affirmed, Kemper v. Barnhart, 118 F.App’x 360,

362 (10th Cir. 2004), cert. denied, 544 U.S. 1041 (2005). On August 5, 2005,

after the Supreme Court denied his petition for a writ of certiorari, M r. Kemper

filed a motion for a new trial in the district court.

       The district court treated the filing as a motion to alter or amend judgment

under Rule 60(b) and denied it, finding “no justification for granting the motion,

including no showing of any newly discovered evidence that would form the basis

for such reconsideration.” Aplee. Supp. App. at 12 (Order, Aug. 22, 2005). The

district court encouraged M r. Kemper to reapply for benefits if he believed that

updated information would prove his disability status. M r. Kemper now appeals

the district court’s ruling.

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

circumstances.” Zurich N. Am. v. M atrix Serv., Inc., 426 F.3d 1281, 1289

(10th Cir. 2005) (internal quotation marks omitted). This court reviews a denial

of a Rule 60(b) motion for abuse of discretion, reversing only if we find

“a complete absence of a reasonable basis” and if we are “certain that the decision

is wrong.” Id. (internal quotation marks and ellipses omitted).

       As applicable to this case, the rule allows the district court to relieve a

party from a final judgment on a showing of “newly discovered evidence which

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by due diligence could not have been discovered in time to move for a new trial

under Rule 59(b)” or “any other reason justifying relief from the operation of the

judgment.” Fed. R. Civ. P. 60(b)(2), (6). A motion based on newly discovered

evidence must be brought “not more than one year after the judgment, order, or

proceeding was entered or taken.” Id.

      In his motion M r. Kemper argued that he wished to present newly

discovered evidence relevant to his social security claim. He filed the motion,

however, more than a year after entry of judgment. Further, the evidence

M r. Kemper proffered had apparently been available for several years, so that it

cannot be considered newly discovered. And our review of the record reveals no

other reasonable basis for granting a relief from judgment.

      Because we discern no abuse of discretion in the district court’s order

denying postjudgment relief, we AFFIRM . M r. Kemper’s motion to proceed in

forma pauperis and his request for appointment of counsel are denied.


                                        Entered for the Court


                                        Harris L Hartz
                                        Circuit Judge




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