                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                            July 17, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
GEORGIANA MONTGOMERY-
BROOKS,

      Plaintiff - Appellant,

v.                                                         No. 14-1486
                                                 (D.C. No. 1:11-CV-01081-WJM)
COMMISSIONER OF SOCIAL                                      (D. Colo.)
SECURITY,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

      Georgiana Montgomery-Brooks appeals from an order denying her second

motion seeking reconsideration of the district court’s judgment in favor of the

Commissioner. In that judgment, the district court affirmed the Commissioner’s

determinations that Ms. Montgomery-Brooks had received an overpayment of Social

Security Disability benefits and that because she was not without fault the

overpayment could not be waived. We affirm.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      In 1992, the Social Security Administration (SSA) determined that

Ms. Montgomery-Brooks had become disabled as of 1985. The SSA began paying

her disability benefits. In October 2005 the SSA issued her a notice terminating her

benefits as of December 2003 because she had engaged in substantial work. The

notice further informed her that she had been overpaid because she continued to

receive benefits after December 2003.

      Ms. Montgomery-Brooks sought and obtained reinstatement of her disability

benefits. She also sought waiver of recovery of the alleged overpayment, see

42 U.S.C. § 404(b) (waiving recovery from certain persons without fault); 20 C.F.R.

§§ 404.506 to 404.509 (discussing waiver criteria), but the agency denied her request.

She requested review of that denial from an administrative law judge (ALJ).

      The ALJ held a hearing on the waiver issue. He issued a written decision in

which he determined that: (1) Ms. Montgomery-Brooks had been overpaid benefits,

“though the amount of the overpayment is unclear,” Admin. R. at 14; (2) she was not

without fault in connection with the overpayment; and (3) she had not met the

requirements for a waiver of recovery of the overpayment. The ALJ therefore denied

her request for waiver of recovery.

      The ALJ also addressed Ms. Montgomery-Brooks’ arguments concerning

proper calculation of the alleged overpayment, stating:

      Because the file contains inconsistent statements by the agency as to the
      dates [Ms. Montgomery-Brooks] was overpaid and the amount of the
      overpayment, the appropriate component [of the agency] should recompute

                                          2
       the amount of the overpayment and provide [her] with a detailed
       explanation taking into consideration [her] reinstatement to disability
       insurance benefits, the amount of past due benefits withheld to recover the
       overpayment, and adjustments against her monthly benefit. If dissatisfied
       with the explanation, [she] may then appeal that issue and ultimately
       request a hearing before an Administrative Law Judge on the amount of the
       overpayment.
Id. at 16 (emphasis added).

       Ms. Montgomery-Brooks appealed the ALJ’s decision to the Appeals Council.

The Council denied her request for review, reasoning that “[t]he only issue properly

before the [ALJ] was whether recovery of the overpayment . . . could be waived.” Id.

at 5. The Council found no basis for review, making the ALJ’s decision the final

decision of the agency on the waiver issue.

       The Council further noted that Ms. Montgomery-Brooks had presented

additional evidence to it concerning the amount of the alleged overpayment. The

Council concluded that “[n]one of the material [she] submitted . . . establish[ed] that

any change in the [ALJ’s findings] on the issues which were before him are

warranted, i.e. that . . . [she was] overpaid for [the relevant] period and that recovery

of the overpayment may not be waived.” Id. The Council stated it was returning the

case to the agency “to implement . . . [the ALJ’s] directive to provide

[Ms. Montgomery-Brooks] with a detailed accounting of the overpayment for the

period which was before the [ALJ].” Id. It admonished Ms. Montgomery-Brooks

that “if you disagree with the [calculation of] any subsequent overpayments or the

accounting you received for these periods, you should contact your local Social

Security office to file an appeal.” Id. at 5-6.

                                            3
      Before a final accounting was provided, Ms. Montgomery-Brooks filed this

action in district court.1 She obtained counsel, who filed a brief on her behalf. In the

brief, Ms. Montgomery-Brooks did not deny that she had been overpaid benefits for

the adjudicated period. She presented the sole issue as “whether recovery of the

overpayment can be waived.” R., Vol. 1 at 118. She argued that she met the

statutory and regulatory criteria for waiver.

      The district court entered an order affirming the ALJ’s decision. It agreed that

“[t]he sole dispute in this case involves whether [Ms. Montgomery-Brooks] should be

granted a waiver of recovery of the benefits that she was overpaid,” and that any

dispute concerning the amount she was overpaid had not been decided by the ALJ

and was not before the court. Id. at 136 & n.2. It then determined that the ALJ’s

determination that Ms. Montgomery-Brooks was at fault for the overpayment was

supported by substantial evidence. The district court entered judgment in favor of the

Commissioner.

      Ms. Montgomery-Brooks filed a pro se motion under Fed. R. Civ. P. 60(b)

seeking relief from the judgment. The district court denied her motion, which it

characterized as presenting “an ongoing dispute with the Commissioner regarding the

amount of overpayment,” and noted that question “was not at issue in the ALJ’s

decision or the Court’s Order.” Id. at 194. Ms. Montgomery-Brooks did not appeal

from the denial.


      1
       It is uncontested in this appeal that the agency’s order denying waiver of the
overpayment was itself a final order subject to judicial review.
                                            4
      Ms. Montgomery-Brooks then filed a second Rule 60(b) motion.2 She again

contended that questions remained whether any alleged overpayment was due.

The district court denied the motion, noting that “because the amount of overpayment

was not at issue in the ALJ’s decision, the Court does not have jurisdiction over the

overpayment issue.” Id. at 277.

                                            II.

      In this appeal, we have jurisdiction only to review the district court’s order

denying Ms. Montgomery-Brooks’ second Rule 60 motion, which was the only order

designated in her notice of appeal. See Fed. R. App. P. 3(c)(1)(B). Our review of the

denial of a Rule 60(b) motion is highly deferential:

      This Court reviews a district court’s denial of a Rule 60(b) motion for
      abuse of discretion. Rule 60(b) relief is extraordinary and may only be
      granted in exceptional circumstances. Parties seeking relief under Rule
      60(b) have a higher hurdle to overcome because such a motion is not a
      substitute for an appeal. Accordingly, our review is meaningfully narrower
      than review of the merits of a direct appeal. Given the lower court’s
      discretion, the district court’s ruling is only reviewed to determine if a
      definite, clear or unmistakable error occurred below. A reviewing court
      may reverse only if it finds a complete absence of a reasonable basis and is
      certain that the decision is wrong. However, a district court would
      necessarily abuse its discretion if it based its ruling on an erroneous view of
      the law or on a clearly erroneous assessment of the evidence.
Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (citations,

brackets, ellipsis, and internal quotation marks omitted).

      On appeal, Ms. Montgomery-Brooks occasionally asserts that she is “without

fault,” but she does not develop an argument on this point based on the statutory

      2
        She also founded her motion on Rule of Evidence 103, but that rule does not
provide for relief from a judgment; it is an evidentiary rule.
                                             5
waiver criteria. Her real argument is that she does not need a waiver, because there

is no overpayment to waive.

       Ms. Montgomery-Brooks presents calculations based on sums allegedly

recovered from her or underpaid to her that she claims were not properly applied to

her balance. Aplt. Opening Br. at 3-4. But these arguments are not properly before

us. Ms. Montgomery-Brooks fails to show that the Commissioner ever reached a

final decision concerning the correct amount of the overpayment and of any

adjustments or credits to which she may be entitled. Judicial review is limited to the

Commissioner’s final decisions. See 42 U.S.C. § 405(g). The district court did not

abuse its discretion in rejecting her attempts to raise issues involving calculation of

the amount due in her second Rule 60(b) motion.

       Ms. Montgomery-Brooks also appears to argue that she never received any

overpayment for the time period considered by the ALJ and the Appeals Council, and

was only assessed an overpayment because of miscalculations, misinterpretations of

law, or fraud by the SSA. This might be viewed as a challenge to something the

agency has determined: that there was an overpayment. See ALJ’s Decision, Admin.

R. at 13 (“The claimant was overpaid disability insurance benefits.”). But even if

this argument attacks a final decision by the Commissioner, we discern no abuse of

discretion in the district court’s denial of Rule 60(b) relief, to the extent this issue

was raised in her motion.

       In her district court merits brief, Ms. Montgomery-Brooks did not contest the

fact that there had been an overpayment during the relevant time period. She only

                                             6
argued that she was entitled to waiver of the overpayment. See R., Vol. 1 at 116-21.3

The case was presented to the district court on that basis. A Rule 60(b) motion is not

the proper place to advance new arguments. See, e.g., Servants of the Paraclete v.

Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

       In sum, Ms. Montgomery-Brooks brought this appeal before a final

determination of the amount owed had been reached. It appears she can obtain such a

determination, and review if necessary, by following the further administrative

procedures described and made available to her by the ALJ and the Appeals Council.

At this point, however, neither we nor the district court may make a determination

concerning the amount that was overpaid and what, if anything, remains due. Those

issues must be resolved in the first instance by the Commissioner.

                                           III.

       We grant Ms. Montgomery-Brooks’ motion to proceed in forma pauperis. The

order of the district court is affirmed.


                                             Entered for the Court


                                             Gregory A. Phillips
                                             Circuit Judge




       3
        The ALJ concluded that she “did not contest the determination that she has
been overpaid disability benefits . . . though the amount of the overpayment is
unclear.” ALJ decision, Admin. R. at 14.
                                            7
