                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                    February 19, 2016

                                                                        Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                          Clerk of Court
                         _________________________________

TRENT LEBAHN,

      Plaintiff - Appellant,

v.                                                        No. 14-3244

ELOISE OWENS, former pension
consultant for the National Farmers Union
Pension Committee,

      Defendant - Appellee.
                      _________________________________

                     Appeal from the United States District Court
                              for the District of Kansas
                        (D.C. No. 6:14-CV-01001-CM-JPO)
                       _________________________________

Randall K. Rathbun, Depew Gillen Rathbun & McInteer, LC, Wichita, Kansas, for
Plaintiff-Appellant.

Alan L. Rupe, Lewis Brisbois Bisgaard & Smith, LLP, Wichita, Kansas, for Defendant-
Appellee.
                      _________________________________

Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.
                 _________________________________

McHUGH, Circuit Judge.
                    _________________________________
                                I.     INTRODUCTION

      Trent Lebahn sued Eloise Owens, a consultant for Mr. Lebahn’s employee

pension plan, for negligently misrepresenting the amount of his monthly retirement

benefits. The district court dismissed Mr. Lebahn’s negligent-misrepresentation

claim, concluding it was preempted by the Employee Retirement Income Security

Act. Mr. Lebahn then filed an untimely Rule 59 motion, arguing preemption did not

apply because Ms. Owens was not a fiduciary of the pension plan. The district court

construed the untimely motion as one under Rule 60(b) and denied relief, reasoning

that Mr. Lebahn’s argument regarding Ms. Owens’s fiduciary status had been raised

too late. Mr. Lebahn now appeals.

      Because we lack jurisdiction to consider Mr. Lebahn’s challenge to the district

court’s underlying judgment, our review is limited to the district court’s denial of

relief under Rule 60(b). Mr. Lebahn has not demonstrated the district court abused its

discretion in denying relief under Rule 60(b), and we therefore affirm the district

court’s judgment.

                                 II.   BACKGROUND

      Trent Lebahn was a sales manager for National Farmers Union Insurance

Company/Midwest Agency (Midwest).1 In early 2012, Mr. Lebahn began to consider

early retirement. He contacted Eloise Owens, a pension consultant for the National

Farmers Union Uniform Pension Plan (the Plan), to determine if the benefits

      1
        Because the underlying judgment in the district court is the grant of a motion
to dismiss, we recite the facts as alleged by the plaintiff, Mr. Lebahn. Albers v. Bd. of
Cty. Comm’rs of Jefferson Cty., Colo., 771 F.3d 697, 699 n.1 (10th Cir. 2014).
                                            2
available to him under the Plan would be adequate to support his family if he retired

early. Ms. Owens calculated Mr. Lebahn’s early-retirement benefits at $8,444.18 per

month. Mr. Lebahn questioned the accuracy of Ms. Owens’s calculations, as the

resulting monthly benefit was substantially greater than the amount reflected in

Mr. Lebahn’s annual statements from the Plan, but Ms. Owens and others working in

the Plan’s pension department confirmed that her calculations were correct.

      Mr. Lebahn elected to retire, and as represented, he received $8,444.18 per

month in retirement benefits from July 2012 through March 2013. But in March

2013, a representative of the Plan contacted Mr. Lebahn and informed him he was

being overpaid. According to the Plan representatives, Mr. Lebahn should have been

receiving only $3,653.78 in monthly benefits and now owed the Plan $43,113.60 he

had received in overpayments. Upon learning that his retirement benefit was much

lower than represented, Mr. Lebahn attempted to return to work. But his position

with Midwest was no longer available, and the only available work would have

required him to move across state or to spend significant time travelling.

      In early 2014, Mr. Lebahn filed this action in the United States District Court

for the District of Kansas. He alleged a claim of negligent misrepresentation against

Ms. Owens for incorrectly calculating his monthly retirement benefit and inducing

him to retire early in reliance on that calculation. Ms. Owens moved to dismiss Mr.

Lebahn’s complaint, arguing his common-law negligent-misrepresentation claim was

preempted by the Employee Retirement Income Security Act (ERISA). Mr. Lebahn

opposed that motion, contending his claim did not “relate to” an ERISA plan because

                                           3
he sought recovery only from Ms. Owens for the economic loss caused by her

negligent misrepresentations, not recovery of additional benefits under the plan.

       The district court ruled in favor of Ms. Owens, concluding Mr. Lebahn’s

claims related to the Plan and, therefore, ERISA preempted his common-law claim.

Specifically, the district court determined Ms. Owens’s allegedly negligent

conduct—her miscalculation of Mr. Lebahn’s benefits—constituted “administration”

of the Plan; Mr. Lebahn’s damages would be based on a calculation of potential Plan

benefits; and “but for the Plan, plaintiff would have no claim—making the Plan itself

a critical factor in the case.” The district court therefore granted Ms. Owens’s motion

and dismissed Mr. Lebahn’s complaint, entering judgment on June 13, 2014.

       On July 14, 2014, Mr. Lebahn filed a “Motion for Reconsideration,” seeking

relief under Rule 59(e) of the Federal Rules of Civil Procedure. In that motion, Mr.

Lebahn argued for the first time that ERISA preemption did not apply because Ms.

Owens was a third-party consultant rather than a fiduciary of the Plan. Mr. Lebahn

contended that “[t]he fact that the defendant is a third party consultant was

overlooked by [the district court] in its ruling” and that the district court therefore

misinterpreted the law governing ERISA preemption, meriting relief under Rule 59.

       The district court first concluded Mr. Lebahn’s motion was not timely under

Rule 59(e), which requires a motion to alter or amend a judgment to be filed within

twenty-eight days of judgment—in this case no later than July 11, 2014. The district

court therefore construed Mr. Lebahn’s untimely Rule 59 motion as a motion for

relief from judgment under Rule 60(b). But the district court denied the motion,

                                             4
reasoning Mr. Lebahn had failed to demonstrate “exceptional circumstances” that

would merit relief under Rule 60. In reaching this conclusion, the district court

determined that Mr. Lebahn’s arguments relating to Ms. Owens’s fiduciary status

were “raised too late” because Mr. Lebahn “failed to bring this issue to the court’s

attention until he lost the motion to dismiss.” The district court further concluded that

a Rule 60(b) motion was “not the proper time to raise an argument” for the first time

and that Mr. Lebahn’s untimely raising of the fiduciary issue was not an adequate

basis for Rule 60(b) relief. The court accordingly denied Mr. Lebahn’s motion for

reconsideration on October 10, 2014. Mr. Lebahn appealed from the district court’s

denial of his motion for reconsideration on November 3, 2014.

                                   III. ANALYSIS

               A. Our Review is Limited to the Denial of 60(b) Relief

      Before addressing Mr. Lebahn’s arguments on appeal, we first note the limited

scope of our review under these circumstances. This court has jurisdiction only to

review district court judgments from which a timely notice of appeal has been filed.

Bowles v. Russell, 551 U.S. 205, 214 (2007). Ordinarily, a notice of appeal must be

filed within thirty days after the entry of the judgment or order appealed from. Fed.

R. App. P. 4(a)(1)(A). Although a motion under Rule 59 or Rule 60 may toll a party’s

time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(4)(A),

that tolling provision is triggered only by filing a Rule 59 or Rule 60 motion within

twenty-eight days of the judgment. See Fed. R. App. P. 4(a)(4)(A) (providing that a

timely Rule 59 motion, or a Rule 60 motion filed within twenty-eight days of the
                                           5
judgment, tolls the time to appeal); Fed. R. Civ. P. 59(e) (providing that a motion to

alter or amend judgment under Rule 59 must be filed no later than twenty-eight days

after the entry of judgment). A Rule 59 or Rule 60 motion filed outside of this

twenty-eight-day window therefore does not enlarge a party’s time to appeal.

       Here, the district court entered judgment dismissing Mr. Lebahn’s complaint

on June 13, 2014. Mr. Lebahn filed his “Motion for Reconsideration” on July 14,

2014—thirty-one days after judgment was entered and outside the window in which

his motion, whether considered under Rule 59 or Rule 60, could successfully toll his

time to file a notice of appeal from the district court’s order. Mr. Lebahn’s November

3, 2014 Notice of Appeal—filed after the district court’s disposition of his motion for

reconsideration—is therefore untimely with respect to the district court’s June 13

order dismissing Mr. Lebahn’s complaint.2 This court accordingly lacks jurisdiction

to consider any challenges to the district court’s order granting Ms. Owens’s motion

to dismiss.

       Instead, the Notice of Appeal was timely only with respect to, and our review

is therefore limited to, the district court’s denial of Rule 60(b) relief. The district

court’s ruling on a Rule 60(b) motion is separately appealable from the district

court’s underlying judgment. Stouffer v. Reynolds, 168 F.3d 1155, 1172 (10th Cir.

1999). But an appeal from denial of Rule 60(b) relief “raises for review only the

       2
        Moreover, Mr. Lebahn’s notice of appeal and docketing statement identify
only the district court’s October 10 order denying Rule 60(b) relief as the order
appealed from. We lack jurisdiction to review orders not identified in the notice of
appeal or its “functional equivalent.” Smith v. Barry, 502 U.S. 244, 248 (1992);
Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997).
                                             6
district court’s order of denial and not the underlying judgment itself.” Id. And that

review is ordinarily limited to whether the district court abused its discretion in

denying relief from judgment. ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735,

754 (10th Cir. 2011).

      Mr. Lebahn does not challenge the district court’s treatment of his motion as

one under Rule 60(b). Rather, he argues that, under the unique procedural posture of

this case, we need not give deference to the district court’s Rule 60(b) decision and

may directly consider his mistake-of-law challenge to the district court’s underlying

judgment. Specifically, he contends Van Skiver v. United States, 952 F.2d 1241 (10th

Cir. 1991), stands for the proposition that if a Rule 60(b)(1) motion asserting a

mistake of law is brought within the time to appeal from the underlying judgment, an

appellate court reviewing the district court’s denial of the Rule 60(b)(1) motion has

“jurisdiction to overturn the underlying judgment” and may “consider the substantive

legal merit of the court’s decision and need not defer to the court’s judgment.”

Because Mr. Lebahn’s motion for reconsideration was filed within the time to appeal

from the district court’s underlying judgment,3 he concludes we may directly

consider the legal merit of his mistake-of-law claim without evaluating the district

court’s denial of Rule 60(b) relief.


      3
         A notice of appeal from the district court’s June 13, 2014 judgment would
normally need to be filed within thirty days, or no later than July 13, 2014. Fed. R.
App. P. 4(a)(1)(A). But because July 13, 2014, was a Sunday, Mr. Lebahn’s time to
file a notice of appeal ran through the following business day, July 14, 2014. Fed. R.
App. P. 26(a)(1)(C). Mr. Lebahn’s motion for reconsideration was accordingly filed
within his time to appeal the district court’s decision.
                                            7
      Mr. Lebahn’s argument stretches Van Skiver too far. Van Skiver merely

recognizes that a Rule 60(b)(1) motion asserting mistake of law is untimely—and

therefore gives the district court no authority to grant relief—unless brought within

the time to appeal. 952 F.2d at 1244; accord Orner v. Shalala, 30 F.3d 1307, 1309–

10 (10th Cir. 1994) (holding where “no notice of appeal was timely filed from the

order in which the mistake is alleged to have occurred, and the time for filing such a

notice of appeal had expired when the [Rule] 60(b) motion was filed[,] . . . Rule

60(b)(1) was not available to the district court as a basis upon which to grant . . .

discretionary relief from its judgment” (first alteration in original)). But nothing in

Van Skiver purports to give this court jurisdiction to disturb a district court’s

underlying judgment from which no timely appeal was taken. To the contrary, Van

Skiver holds that “appeal from the denial of the [Rule 60(b)] motion raises for review

only the district court’s order of denial and not the underlying judgment itself.” 952

F.2d at 1243. Mr. Lebahn’s argument that we have “jurisdiction to overturn the

underlying judgment” and may directly consider whether the district court made a

mistake of law in granting the motion to dismiss is thus without merit.

      Even if we read Mr. Lebahn’s argument more narrowly, as asserting only that

we may review the district court’s decision under these circumstances non-

deferentially, that argument nevertheless fails. Mr. Lebahn here relies on Moore’s

treatise on federal practice, which makes the unexceptional observation that where

the district court “reviews its own mistake of law under Rule 60(b)(1) and that

determination is appealed,” a court of appeals “will reach the substantive legal merits

                                            8
of the underlying judgment” and “does not defer to the judgment of the district

court.” 12 James Wm. Moore et al., Moore’s Federal Practice – Civil § 60.68 (2015).

We agree that where a district court makes a legal error in reviewing its own prior

decision, we do not defer to the district court’s erroneous legal conclusion and the

district court “by definition abuses its discretion.” See Koon v. United States, 518

U.S. 81, 100 (1996). But these principles are of no help to Mr. Lebahn, because the

district court here did not evaluate the purported legal errors in its decision. Rather,

the district court ruled that Mr. Lebahn’s arguments were untimely, that Rule

60(b)(1) was not an appropriate vehicle to raise arguments that could have been

raised earlier, and that the purported mistakes were arguable at best and therefore not

obvious and apparent on the record as would be necessary to justify Rule 60(b)(1)

relief. These are not decisions interpreting legal questions, but equitable matters

committed to the district court’s discretion. Van Skiver, 952 F.2d at 1243. Because

the district court did not “review[] its own mistake of law” under Rule 60(b)(1) but

instead exercised its discretion to conclude relief under Rule 60(b)(1) would be

improper, Mr. Lebahn cannot demonstrate the district court’s Rule 60(b) decision is

founded on a legal error that would permit us to subject the district court’s decision

to de novo review. Our review is thus limited to whether the district court exceeded

its discretion, and Mr. Lebahn’s arguments to the contrary are without merit.4


      4
       Because our review is thus limited, we do not address Mr. Lebahn’s
argument that the district court erred in granting Ms. Owens’s motion to dismiss by
applying a “but for” standard in evaluating whether Mr. Lebahn’s claim “related to”
an ERISA plan.
                                            9
    B. The District Court Did Not Abuse Its Discretion in Denying 60(b) Relief

      Accordingly, we consider only whether the district court’s denial of Rule 60(b)

relief was an abuse of discretion, “keeping in mind that Rule 60(b) relief is

extraordinary and may only be granted in exceptional circumstances.” ClearOne

Commc’ns, 643 F.3d at 754. Rule 60(b) relief is not properly granted where a party

merely revisits the original issues and seeks to “challenge the legal correctness of the

district court’s judgment by arguing that the district court misapplied the law or

misunderstood [the party’s] position.” Van Skiver, 952 F.2d at 1244. And a Rule

60(b) motion is not an appropriate vehicle to advance new arguments or supporting

facts that were available but not raised at the time of the original argument. Cashner

v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th. Cir. 1996). We will not reverse the

district court’s decision on a Rule 60(b) motion unless that decision is “arbitrary,

capricious, whimsical, or manifestly unreasonable.” Weitz v. Lovelace Health Sys.,

Inc., 214 F.3d 1175, 1181 (10th Cir. 2000).

      In his motion for reconsideration, Mr. Lebahn argued for the first time that

ERISA preemption did not apply because Ms. Owens was a third-party consultant of

the Plan, not a Plan fiduciary. Mr. Lebahn relied on Airparts Co. v. Custom Benefit

Services of Austin, 28 F.3d 1062 (10th Cir. 1994), in support of his argument that his

negligent-misrepresentation claim did not “relate to” an ERISA plan because it would

not “impact the traditional plan entities”: the principals, the employer, the plan, the

plan fiduciaries, and the beneficiaries. Mr. Lebahn asserted that Airparts foreclosed

the district court’s reasoning, and he faulted the district court for “miss[ing] the

                                            10
overall holding of Airparts” and “overlook[ing]” the “fact that the defendant is a

third party consultant” rather than a Plan fiduciary. In his reply memorandum in

support of that motion, Mr. Lebahn further modified his argument, now asserting that

the district court had improperly decided Ms. Owens was a fiduciary at the motion-

to-dismiss stage.

      The district court denied Mr. Lebahn’s motion to reconsider, explaining that

Mr. Lebahn’s arguments were raised too late, that the district court had “applied the

law to the facts and issues as pleaded by plaintiff and briefed by the parties,” and that

Mr. Lebahn “failed to bring [the fiduciary issue] to the court’s attention until he lost

the motion to dismiss.” The district court therefore concluded Mr. Lebahn had failed

to meet his burden of “showing that the court made a mistake so exceptional that it is

obvious on the record and merits setting aside the judgment.”

      Mr. Lebahn’s principal argument on appeal is that the district court “made a

mistake of law when it implicitly held that [Ms. Owens] was a traditional plan

entity”—i.e., a fiduciary of the Plan. Mr. Lebahn also argues the district court abused

its discretion in denying Rule 60(b) relief because it improperly concluded Mr.

Lebahn’s argument regarding Ms. Owens’s fiduciary status could have been raised

sooner.

      To begin, the central premise of Mr. Lebahn’s argument—that the district

court in fact determined Ms. Owens was a fiduciary of the Plan—is unfounded. This

contention springs solely from the district court’s observation in granting Ms.

Owens’s motion to dismiss that “subjecting defendant’s actions to Kansas law”

                                           11
would “subvert[] ERISA’s objective of providing uniform guidelines for plan

fiduciaries.” Seizing on this single reference to fiduciaries, Mr. Lebahn argues the

district court impliedly found Ms. Owens was a fiduciary, a finding Mr. Lebahn

maintains was inappropriate. But the record belies Mr. Lebahn’s contention that the

district court made any such finding. As Mr. Lebahn concedes, whether Ms. Owens

was or was not a fiduciary “was not an issue before the motion to dismiss was

granted” because the parties had argued only “whether the state law claim related to

an ERISA plan because of its effect on administration of the plan.” Where the issue

had not been raised by the parties, the district court had no reason to rule on Ms.

Owens’s fiduciary status. And in ruling on Mr. Lebahn’s motion for reconsideration,

the district court explains that it considered Ms. Owens’s fiduciary status to be a

novel issue, which Mr. Lebahn “failed to bring . . . to the court’s attention until he

lost the motion to dismiss.” We cannot glean from the district court’s rulings a

finding that Ms. Owens was a fiduciary, and we therefore cannot conclude that the

district court abused its discretion in declining to reverse a decision it had not made.

      We next consider Mr. Lebahn’s contention that his arguments regarding Ms.

Owens’s fiduciary status could not have been raised earlier and that the district court

abused its discretion in ruling otherwise. Mr. Lebahn states “[t]he fiduciary issue was

not raised until the Court sua sponte made its improper determination that Appellee

was a fiduciary in its ruling on the motion to dismiss.” Thus, in Mr. Lebahn’s view,

the argument regarding Ms. Owens’s fiduciary status “could not have been made

before the Court issued its opinion on the motion to dismiss.”

                                           12
       But Mr. Lebahn’s argument ignores his obligation to bring relevant issues to

the district court’s attention. “[I]t is not the court’s job to comb the record in order to

make the non-movant’s arguments for him.” Cf. Cohlmia v. St. John Med. Ctr., 693

F.3d 1269, 1282 (10th Cir. 2012) (internal quotation marks omitted). If, as Mr.

Lebahn now contends, Ms. Owens’s fiduciary capacity is fatal to her claim of ERISA

preemption, he should have raised this argument in opposition to Ms. Owens’s

motion to dismiss. Tellingly, Mr. Lebahn’s complaint does not discuss Ms. Owens’s

fiduciary status, or even contain the word fiduciary, and his opposition to Ms.

Owens’s motion to dismiss does not address her fiduciary capacity at all. Certainly,

the district court had no obligation to sua sponte construct an argument for Mr.

Lebahn that he failed to raise on his own behalf. Id. And Mr. Lebahn has not

demonstrated that an argument relating to Ms. Owens’s fiduciary status was

unavailable to him in opposing her motion to dismiss. Rather, it appears Mr. Lebahn,

through inadvertence or strategic choice, simply failed to raise the issue in opposition

to the motion to dismiss. Only after the district court had ruled against him and

dismissed the action did Mr. Lebahn argue that Ms. Owens’s status as a non-fiduciary

of the Plan indicated that preemption was not appropriate. The district court did not

abuse its discretion in determining that Mr. Lebahn’s fiduciary argument was not

timely raised and was therefore not a proper basis on which to grant Rule 60(b)

relief.5


       5
       Mr. Lebahn also argues the district court failed to address other “issues
concerning mistake of law and ERISA preemption” and “specific instances where the
                                            13
       In the end, we are faced only with the question of whether the district court

abused its discretion in denying relief on the basis it “overlooked” the issue of

whether Ms. Owens was a fiduciary in its initial ruling. The record supports the

district court’s conclusion that this issue was not properly raised in opposition to Ms.

Owens’s motion to dismiss. And the district court correctly observed a party may not

use Rule 60(b) to raise arguments that could have been raised earlier. See Cashner,

98 F.3d at 577. The district court’s determination that Mr. Lebahn did not present

exceptional circumstances justifying Rule 60(b) relief is neither arbitrary nor

manifestly unreasonable such that we could conclude the district court abused its

discretion. Weitz, 214 F.3d at 1181. We therefore affirm the district court’s denial of

relief under Rule 60(b).

                                  IV. CONCLUSION

       Mr. Lebahn’s untimely Rule 59 motion did not toll his time to appeal, and his

notice of appeal is therefore timely only with respect to the denial of postjudgment

relief. We therefore lack jurisdiction to entertain his challenges to the district court’s

underlying judgment granting Ms. Owens’s motion to dismiss. Mr. Lebahn’s

argument regarding Ms. Owens’s status as a fiduciary could have been raised in

opposition to her motion to dismiss, and the district court therefore did not abuse its




Court made substantive mistakes of law.” But Mr. Lebahn’s briefing does not
identify the specific issues he seeks to challenge or provide meaningful legal analysis
to demonstrate error by the district court, and he has therefore waived these issues.
See Harsco Corp. v. Renner, 475 F.3d 1179, 1190 (10th Cir. 2007).
                                            14
discretion in denying Mr. Lebahn’s motion for reconsideration under Rule 60(b). We

therefore affirm the district court’s denial of Rule 60(b) relief.




                                            15
