                                                                            FILED
                                                                United States Court of Appeals
                                       PUBLISH                          Tenth Circuit

                      UNITED STATES COURT OF APPEALS                   June 12, 2019

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

TONY NELSON,

      Plaintiff - Appellant,

v.                                                       No. 17-2199
                                              (D.C. No. 1:10-CV-00553-JB-DJS)
CITY OF ALBUQUERQUE, a political                          (D. N.M.)
subdivision of the State of New Mexico;
R.T. JOHNSON, an Officer of the
Albuquerque Police Department,
individually; D. HUGHS, an Officer of the
Albuquerque Police Department,
individually; A. LIMON, an Officer of the
Albuquerque Police Department,
individually; S. WEIMERSKIRCH, an
Officer of the Albuquerque Police
Department, individually,

      Defendants - Appellees,

and

BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY
OF BERNALILLO, a political subdivision
of the State of New Mexico; JOHN AND
JANE DOES, Officers of the Albuquerque
Police Department, individually;
DERRICK WULFF, Detective of the
Albuquerque Police Department, in his
Individual Capacity as a State Actor of the
City of Albuquerque; J. SATHER,
Sergeant of the Albuquerque Police
Department, In his Individual Capacity as a
State Actor of the City of Albuquerque,
      Defendants.
                         _________________________________

                                      ORDER
                         _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE, LUCERO, HARTZ, HOLMES,
MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, and
CARSON, Circuit Judges.
                    _________________________________

       On April 16, 2019, the panel’s opinion issued in this matter, and judgment issued

the same day. An active judge of the court then called a poll, sua sponte, to consider en

banc review of the panel decision. A majority of the active judges of the court voted not

to rehear the case, and as a result the poll failed. See Fed. R. App. P. 35(a).

       Chief Judge Tymkovich and Judge Hartz voted to grant en banc rehearing. Judge

Hartz has prepared the attached written dissent from the denial of en banc

reconsideration, in which Chief Judge Tymkovich joins. Judge Bacharach has prepared

the attached written concurrence supporting the denial of rehearing. Judges Briscoe,

Matheson, Phillips and Moritz join in that concurrence.


                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




                                              2
17-2199, Nelson v. City of Albuquerque

HARTZ, Circuit Judge, dissenting, joined TYMKOVICH, Chief Judge.

       I dissent from the denial of en banc review. The panel made two singular errors in

reaching its decision. First, and most important, it made the unprecedented decision that

a district court abused its discretion by correcting what it perceived as its prior clear error

in response to a timely motion under Federal Rule of Civil Procedure 59(e). (Because the

panel saw no need to review the merits of the district court’s ruling, we can assume that it

believed that the district court abused its discretion even if it had clearly erred in its

previous ruling.) The panel based its holding on its view that the Rule 59(e) motion was

an “improper Rule 59(e) motion because it had simply rehashed arguments from [an

earlier] motion.” Nelson v. City of Albuquerque, 921 F.3d 925, 927 (10th Cir. 2019)

(emphasis added). I am aware of no decision by any federal court to the same effect.

Our judicial tradition has strongly affirmed that a court in a civil case should be able to

correct a mistake in response to a timely motion for reconsideration, thereby avoiding an

unnecessary appeal. The panel’s opinion is contrary to “the wisdom of giving district

courts the opportunity promptly to correct their own alleged errors.” United States v.

Dieter, 429 U.S. 6, 8 (1976).

       Second, recognizing that this court has recently stated (correctly) that “[c]ertainly

a motion under Rule 59(e) allows a party to reargue previously articulated positions to

correct clear legal error,” Hayes Family Trust v. State Farm Fire & Casualty Co., 845

F.3d 997, 1005 (10th Cir. 2017), the panel opinion tries to distinguish this case on the

ground that this was the movant’s second motion under Rule 59(e). This attempt to
distinguish our precedent is wrong on three counts: (1) So long as the district court had

jurisdiction and the motion was timely, it should be able to correct its errors even if this

was the party’s second motion. (2) All the authority relied on by the panel for stating that

the motion was “improper” concerned initial Rule 59(e) motions, so we can be sure

(given the extensive precedent) that whatever “improper” meant in those cases it did not

mean that the district court should not correct clear error in response to such a motion.

And, most remarkably, (3) the panel has insisted that the movant’s prior motion was

under Rule 59(e) even though it was a prejudgment motion and therefore doubtlessly not

a motion under Rule 59(e). We should not evade in this manner our duty to address the

merits of the district court’s decision.

       Before discussing the applicable law, it is worth summarizing the procedural

posture of this case relevant to the panel’s decision. The district court conducted a trial

on Plaintiff’s claim that Defendants had violated his constitutional rights by using

excessive force. The jury found that Plaintiff’s rights had not been violated. Plaintiff had

filed a motion for directed verdict on liability before the verdict was handed down and

renewed the motion after judgment was entered. Defendants responded that there was

sufficient evidence to support a finding that there had been no violation. The district

court granted the motion, ruling that based on the evidence at trial the only reasonable

verdict was that Defendants had used constitutionally excessive force. It set aside the

verdict, ruled that Defendants were liable, and ordered a new trial on damages.

Defendants moved for reconsideration, arguing that there was a reasonable view of the

evidence that supported the verdict; they also argued, as they had before the verdict, that

                                              2
they were entitled to qualified immunity on the ground that the law was not clearly

established. The district court denied the motion but said nothing about whether the law

was clearly established. The parties then stipulated to the amount of damages, and the

court entered final judgment. That was when Defendants filed the timely motion under

Rule 59(e) that is the subject of this appeal. The district court granted the motion,

holding that the court had clearly erred in setting aside the verdict, in part because the law

had not clearly established that Defendants acted with constitutionally excessive force.

       The panel opinion did not express a view on the merits of the district court’s

decision. Nor do I. The sole issue before us is whether it was improper to grant the Rule

59(e) motion even if the district court had previously erred.

       Rule 59(e) says nothing about when relief under the Rule is appropriate. The

complete text of the present version is: “A motion to alter or amend a judgment must be

filed no later than 28 days after the entry of the judgment.” The Rule’s purpose was just

to “make[] clear that the district court possesses the power . . . to alter or amend a

judgment after its entry,” as had been declared by a divided Eighth Circuit panel in Boaz

v. Mutual Life Ins., 146 F.2d 321 (8th Cir. 1944). Fed. R. Civ. P. 59, advisory committee

1946 note to Subdivision (e). Or, as a participant at the rules committee meeting that

approved Rule 59(e) expresses it in his treatise, the provision “was adopted in order to

clarify that the district court has the power to rectify its own mistakes in the period

immediately following the entry of judgment.” Moore’s Federal Practice 3d, § 59.30 [1].

The chief effect of the rule was to set a deadline for such postjudgment motions (which

was 10 days from entry of judgment in the original rule).

                                              3
       The standards for determining when relief should or may be granted under Rule

59(e) are judge-made. Sometimes the district court decides to grant the motion even

though the court still believes it reached the correct result on the record before it when it

originally ruled on the issue, but newly discovered evidence or new law (a statute or

precedential court decision) has come down since the issue was first raised. Ordinarily,

however, the reason the court grants the motion is simply because it believes it made a

mistake the first time around. The Supreme Court recently reminded us that federal

judges are not immortal. We are also far from infallible. We overlook things, misread

things, misunderstand the facts, or just misthink in the hurly-burly of dealing with heavy

dockets or a busy life. (Just ask my law clerks.) A Rule 59(e) motion can alert the court

to its prior error and permit correction. This is a good thing, not something to be avoided.

To again quote Dieter, where the district court got a critical fact wrong, disallowing such

motions may “prolong[] litigation and unnecessarily burden[] [appellate courts], since

plenary consideration of an issue by an appellate court ordinarily requires more time than

is required for disposition by a trial court of a petition for rehearing.” 429 U.S. at 8.

       In accord with the Supreme Court’s view, this court has stated: “Grounds

warranting a motion to reconsider include (1) an intervening change in the controlling

law, (2) new evidence previously unavailable, and (3) the need to correct clear error or

prevent manifest injustice. Thus, a motion for reconsideration is appropriate where the

court has misapprehended the facts, a party’s position, or the controlling law.” Servants

of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citation omitted). This

approach furthers the proper relationship between the trial and appellate courts. “[T]he

                                              4
traditional concept has been that it is for the trial courts to dispense justice, with the

appellate court sitting only to affirm or reverse their decisions. The notion that these

questions [regarding a dispositive issue of law] should be left for the appellate courts to

decide in the first instance is a novel one.” 11 Charles Alan Wright, et al., Federal

Practice and Procedure § 2803 at 64 (hereinafter “Wright & Miller”).

       Of course, we would not say that a court “misapprehended” something unless that

something (“the facts, a party’s position, or the controlling law,” Servants of the

Paraclete, 204 F.3d at 1012) had previously been presented to the court. See Vaughn v.

Consumer Home Mort. Co., Inc., 470 F. Supp. 2d 248, 258 (E.D.N.Y. 2007) (rejecting

“the proposition that a motion for reconsideration must be denied simply because the

cases or arguments that the court is alleged to have overlooked were before it when it

issued its initial ruling[.] [I]ndeed, such a holding would defy the generally accepted

meaning of the word ‘overlooked.’”). Thus, we have said: “Certainly a motion under

Rule 59(e) allows a party to reargue previously articulated positions to correct clear legal

error.” Hayes, 845 F.3d at 1005. Other circuits have acted accordingly. In Gagliano v.

Reliance Standard Life Ins. Co., 547 F.3d 230, 234 (4th Cir. 2008), the district court set

aside a judgment under Rule 59(e) almost four years after the original judgment upon

reconsideration of a previously presented argument. The appellate court said that “the

district court did not err in granting a motion to reconsider,” even though Rule 59(e) “is a

remedy to be used sparingly.” 547 F.3d at 241 n.8 (internal quotation marks omitted). At

least one other circuit has taken this proposition one step further. In Firestone v.

Firestone, 76 F.3d 1205, 1211 (D.C. Cir. 1996), the appellate court held that the district

                                               5
court had abused its discretion by not granting a Rule 59(e) motion re-arguing a

proposition presented to the district court before judgment.

       Although what I have just said about Rule 59(e) is nothing new, it may seem

inconsistent with other statements made about motions under the Rule. Thus, in Servants

of the Paraclete, which I have just quoted in favor of granting Rule 59(e) motions that

point out oversights or errors by the district court in prior rulings on the matter, we also

said (after resolving the merits of the postjudgment motions):

       [Motions for reconsideration under Rule 59(e)] are inappropriate vehicles to
       reargue an issue previously addressed by the court when the motion merely
       advances new arguments, or supporting facts which were available at the
       time of the original motion. Absent extraordinary circumstances, . . . the
       basis for the second motion must not have been available at the time the
       first motion was filed. . . . It is not appropriate to revisit issues already
       addressed or advance arguments that could have been raised in prior
       briefing.

204 F.3d at 1012.1 We are not alone in voicing that sentiment. The Supreme Court has

quoted with approval the statement in a leading treatise that Rule 59(e) “‘may not be used

to relitigate old matters, or to raise arguments or present evidence that could have been

raised prior to the entry of judgment.’” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485

n.5 (2008) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2810.1,

127–28 (2d ed. 1995)). But cf. Wright & Miller § 2810.1 at 158 (2012) (stating that a

Rule 59(e) motion may be granted if the movant “demonstrate[s] that the motion is

necessary to correct manifest errors of law or fact upon which the judgment is based.”)


1
  The only authority cited in support of the three quoted sentences was Van Skiver v.
United States, 952 F.2d 1241, 1243 (10th Cir. 1991), where the appellant had filed only
one postjudgment motion, which we construed as a motion under Rule 60(b).
                                              6
       What could this mean? Once we prohibit arguing points raised in earlier motions

and points that could have been raised in earlier motions, the only arguments left are

those based on newly discovered evidence and new law. If, as the panel opinion

indicates, any other motion is an “improper” Rule 59(e) motion, and if it is an abuse of

discretion to grant an “improper” motion, even when the motion convinces the district

court that it has made a clear error, then district courts would be well advised to reject the

great bulk of Rule 59(e) motions by summarily reviewing them to make sure that they did

not raise new authority or newly discovered evidence. If a motion did not survive this

cut, it would be a waste of time to consider the merits of the motion, because even if the

district court were convinced of its error, it could not do anything about it. Is the “need to

correct clear error or prevent manifest injustice” no longer a “[g]round[] warranting a

motion to reconsider”? Servants of the Paraclete, 204 F.3d at 1012. Is a Rule 59(e)

motion no longer “appropriate where the court has misapprehended the facts, a party’s

position, or the controlling law”? Id. Is it truly improper to file in a civil case a motion

for reconsideration such as that in Dieter, which presented no new facts or law?

       Given this apparent disconnect between the proper grounds for granting a Rule

59(e) motion and those for making such a motion, one could be forgiven for thinking that

the courts are befuddled. But the seemingly contradictory statements above are no more

than flip sides of the same coin. And what that coin purchases is discretion for the

district courts. As Judge Selya colorfully described the point: “We have repeatedly held

that, once the ball has ended, the district court has substantial discretion in deciding

whether to strike up the band again . . . .” In re Sun Pipe Line Co., 831 F.2d 22, 25 (1st

                                              7
Cir. 1987). District courts have substantial discretion to deny a Rule 59(e) motion, and

substantial discretion to grant one. If a motion regurgitates old arguments or attempts to

raise new arguments that could have been raised before, the district court does not abuse

its discretion in refusing to go over the matter again. But if the motion convinces the

court that it made a mistake, it has discretion to grant it. I am in full accord with the

following statement by the district court in this case:

       The Court . . . concludes that Servants of [the] Paraclete v. Does does not
       force the Court to deny a motion to amend or alter, simply because it raises
       identical issues; rather, it affords the Court the option to deny that motion
       for reasons of judicial efficiency. A court need not review a motion to alter
       or amend with the same rigor if the motion raises issues already considered,
       because it would waste time by forcing a judge to rewrite an opinion
       already rendered. If, on the other hand, a party raises an identical issue on a
       motion to alter, and, upon the district judge’s reflection, perhaps after
       passions have cooled, he or she concludes that he or she erred previously,
       Servants of [the] Paraclete v. Does does not chain that district judge to an
       erroneous legal conclusion. There is no sound reason for a district judge to
       be unable to change a ruling he or she has made if he or she has become
       concerned that he or she is wrong.

Nelson v. City, 283 F. Supp. 3d 1048, 1099 (D.N.M. 2017); see Commonwealth of

Massachusetts v. United States, 333 U.S. 611, 639–40 (1948) (Jackson, J., dissenting) (“I

see no reason why I should be consciously wrong today because I was unconsciously

wrong yesterday.”) It may be of some interest that in Boaz, 146 F.2d at 321, which was

the stimulus for adding Rule 59(e), the postjudgment motion granted by the district court

was the defendant’s motion to reconsider its decision (“at plaintiff’s instance and over

defendant’s objection”) to dismiss plaintiff’s claim without prejudice rather than with

prejudice. No mention is made of whether the defendant could not have raised its

arguments at the time of the original decision.

                                              8
       It has always been my understanding that this court operates similarly on petitions

for rehearing. We get a great many of them. We deny the vast majority because they

repeat what has already been presented in the briefs or they raise new arguments that

could have been presented before. But we carefully review all of them to determine if we

missed something. Occasionally, we did miss something, and we correct our opinion.

The important thing is to do justice. I am confident that this is also the practice of the

district courts. The fact that a motion for reconsideration may properly be rejected on its

face does not mean that the motion should be treated as a nullity or shunned as something

evil. Not that long ago, a party raised an argument in a petition for rehearing that was

not, yet could have been, raised in the normal briefing in this court; we denied the

petition but were unanimously reversed by the Supreme Court on the new ground. See

Wood v. Milyard, 566 U.S. 463 (2012).

       It is not clear to me what the panel opinion makes of all this. The heart of its

reasoning is that Defendants’ Rule 59(e) motion was “improper” because “it had simply

rehashed arguments from the first motion.” Nelson, 921 F.3d at 927. It then held that

because the motion was improper, the district court, despite believing that it had

committed clear error, abused its discretion by granting relief. To support the label

“improper,” the panel opinion relies on cases addressing an original motion under Rule

59(e). It would be natural to presume that this means that any Rule 59(e) motion that

rehashes arguments made in a prior motion is an “improper” motion. And it would also

be natural to then conclude that granting such a Rule 59(e) motion would always be an

abuse of discretion. But at this critical juncture, the panel opinion draws back. It

                                              9
acknowledges our statement in Hayes that “[c]ertainly a motion under Rule 59(e) allows

a party to reargue previously articulated positions to correct clear legal error.” 845 F.3d

at 1005. It appears, however, to distinguish Hayes on the ground that in this case the

prior motion was also a motion purportedly under Rule 59(e) (although perhaps it is

making something of the fact that the motion in Hayes “challenge[d] an earlier order

confirming an appraisal award”). Nelson, 921 F.3d at 929 n.1 (emphasis added).

       The panel opinion “explains” the distinction between first and repeated Rule 59(e)

motions in three sentences:

       Rule 59(e) motions may be granted when “the court has misapprehended
       the facts, party’s position, or the controlling law.” Servants of the
       Paraclete, [204 F.3d at 1012]. But once the district court enters judgment,
       the public gains a strong interest in protecting the finality of judgments.
       See Sanchez-Llamas v. Oregon, 548 U.S. 331, 356 (2006) (discussing the
       “important interest in finality of judgments”). This interest in finality
       becomes even stronger when a district court has previously denied relief
       under Rule 59(e). See In re Stangel, 68 F.3d 857, 859 (5th Cir. 1995)
       (“[T]he interest of finality requires that the parties generally get only one
       bite at the Rule 59(e) apple for the purpose of tolling the time for bringing
       an appeal.”).

Id at 929. The first sentence states a proposition contrary to the holding in this case. The

next sentences try to distinguish this case so that the proposition does not apply. The

second sentence fails in that regard because what it says is true of every Rule 59(e)

motion. All Rule 59(e) motions are filed after entry of final judgment. See Wright &

Miller § 2817 at 229 (“[A] Rule 59(e) motion is . . . considered untimely if it is made

before the entry of judgment.”). The interest in finality is incorporated into the Rule

itself, by requiring that the motion be filed promptly after final judgment—within 28



                                             10
days. (The Supreme Court decision cited at the end of the sentence, which notes the need

for respecting procedural-default rules, is of no special relevance.)

       The panel opinion’s holding thus must rest on the greater interest in finality when

the court has denied a prior Rule 59(e) motion. To begin with, the cited opinion from the

Fifth Circuit does not support the panel opinion. That case was concerned only with the

timeliness of appeal, not the propriety of the motion. When it said that a second motion

under Rule 59(e) would not toll the time for appeal, it did not restrict the proposition to

inappropriate second motions; and it did not say that it would have been an abuse of

discretion to grant a meritorious second motion. (Say, the second Rule 59(e) motion

merely pointed out that the district court got a critical date wrong in denying the first

motion.) More importantly, I would have thought that Rule 59(e) itself resolved where to

draw the proper finality line when it required that a motion under the Rule must be filed

within 28 days of entry of final judgment. Most striking, the panel opinion fails to

explain why the interest in finality is so much greater if the prior motion was under Rule

59(e) rather than under another rule. When a court draws such peculiar, and unexplained,

lines, lawyers and other courts can be perplexed about what is going on. What comes

next—barring a Rule 59(e) motion after a Rule 50(b) motion? 2



2
   I am not referring in this opinion to repeated motions under Rule 59(e) that are filed
after an original final judgment and then after a modified final judgment. The law
appears to be fairly well established that if a motion is filed after the second judgment but
is directed to matters in the first judgment that were not modified by the second
judgment, the motion must be filed within 28 days of the original final judgment. See 11
Wright & Miller § 2817 at 233–35 & n.14. Again, there was no problem with timeliness
of the Rule 59(e) motion in this case.
                                             11
       Which brings me to the second serious problem with the panel opinion. What

makes its ruling all the more puzzling is that the foundation of the “repeated Rule 59(e)

motion” rationale of this opinion floats on a mirage. There was no prior Rule 59(e)

motion in this case. The purported prior Rule 59(e) motion was filed before a final

judgment—it was filed after the district court granted Plaintiff’s motion under Rule

50(b), ruled that Plaintiff prevailed on liability, and ordered a new trial on damages.

When Defendants challenged that ruling before final judgment was entered on stipulated

damages, the only applicable Rule of Civil Procedure was Rule 54(b), which states that

(absent designation of a final judgment on fewer than all claims or parties) “any order or

other decision, however designated, . . . may be revised at any time before the entry of a

judgment adjudicating all the claims and all the parties’ rights and liabilities.” Thus,

“every order short of a final decree is subject to reopening at the discretion of the district

judge.” Moses H Cohen Mem’l v. Mercury Const., 460 U.S. 1, 12 (1983). In particular,

as stated in a leading treatise: “An order granting a new trial is interlocutory and destroys

the finality of the judgment. Because a district court has plenary power to reconsider,

revise, alter, or amend an interlocutory order, the court has the power to take any action

with respect to an order granting a new trial.” Moore’s § 59.21[1] (footnotes omitted).

       And the opinion is not only based on an obvious mislabeling. The mislabeling

also undermines whatever rationale the panel opinion had. If the reason for not

permitting the district court to correct its error is the interest in finality arising from there

being two postjudgment Rule 59(e) motions, that reason evaporates when the mislabeled

Rule 59(e) motion was a prejudgment motion addressing an interlocutory order.

                                               12
       So why does the panel opinion insist on treating Defendants’ first motion as a Rule

59(e) motion? The only possible justification could be that the district court and the

parties so treated it. See Nelson, 921 F.3d at 928. This approach to reversing the district

court is contrary to fundamental judicial practice. First, this court has repeatedly held

that the rule governing a motion is not determined by the label but by the substance. See,

e.g., Home Loan Inv. Co. v. St. Paul Mercury Ins. Co., 827 F.3d 1256, 1270 n.12 (10th

Cir. 2016) (“[W]e look beyond the form of the motion to the substance of the relief

requested.” (internal quotation marks omitted)). Second, the parties’ stipulation to a

matter of law, even when approved by the lower court, is not binding. See Swift & Co. v.

Hocking Valley Ry. Co., 243 U.S. 281, 289–90 (1917) (“[T]he court cannot be controlled

by agreement of counsel on a subsidiary question of law. . . . [And the] fact that effect

was given to the stipulation by the appellate courts of Ohio does not conclude this court. .

. . We treat the stipulation, therefore, as a nullity.”). Indeed, this court has said that the

district court “was obligated to correctly instruct the jury on the law,” despite a

stipulation to a defective jury instruction. Zia Shadows, LLC v. City of Las Cruces, 829

F.3d 1232, 1242 (10th Cir. 2016). Third, and critically, the panel opinion’s reliance on

an incorrect stipulation of law as a ground to reverse the lower court breaks new ground.

It is a “settled rule that, in reviewing the decision of a lower court, it must be affirmed if

the result is correct although the lower court relied upon a wrong ground or gave a wrong




                                               13
reason.” SEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (internal quotation marks

omitted).3

       If the result in this case would have been the same regardless of how Defendants’

initial motion is characterized, then there is no harm (at least with respect to the parties

here) in adopting the lawfully incorrect stipulation regarding the nature of that motion.

But if the reversal in this case depends on that initial motion being a Rule 59(e) motion,

then the panel opinion is surely contrary to the dictate of Chenery. It should have

properly characterized the initial motion (looking at the substance instead of the title) and

upheld the decision to reconsider the earlier ruling (although, of course, it would then be

necessary to evaluate the merits of the decision to grant judgment to Defendants). This

feature of the panel opinion surely will create more doubt about how it is to be applied in

future cases.

       Finally, I should address two collateral matters that could create confusion. First,

the panel opinion makes a point of not deciding whether the district court could sua

sponte correct its prior order. See Nelson, 921 F.3d at 930–31. If this is to suggest that

there is an escape hatch from the panel opinion’s construction of Rule 59(e), it is an

artificial, and unconvincing, one. I can see no reason, and the panel opinion does not



3
  Judge Bacharach’s opinion concurring in the denial of rehearing en banc suggests that
Defendants benefited from mischaracterizing their initial motion as one under Rule 59(e).
But the same benefit would have accrued if Defendants had correctly categorized it as
merely a motion to correct an error in an interlocutory order—as recognized in Rule
54(b). I am not aware of any difference it would have made in the district-court
proceedings had Defendants’ first motion been properly characterized rather than being
labeled a Rule 59(e) motion.
                                              14
suggest any, why the rules committee would think that a court should be permitted to do

something sua sponte but not in response to a motion.

       Second, the panel opinion points to an advisory committee note to the 1946

amendment to Rule 59, which added Rule 59(e). See id. at 931. The note states that Rule

59(e) “deals only with alteration or amendment of the original judgment in a case and

does not relate to a judgment upon motion as provided in Rule 50(b).” Fed. R. Civ. P.

59(e) advisory committee note to 1946 amendment. That note is wholly irrelevant to this

case, even though the district court had entered a final judgment after granting a motion

under Rule 50(b). The proceedings of the March 1946 meeting of the Advisory

Committee on Rules for Civil Procedure were transcribed. The transcript shows that the

committee note related only to the time for bringing a Rule 59(e) motion, which

originally required the motion be filed within 10 days of entry of judgment. When the

draft of the rule had been publicly circulated, a bar association had pointed out that a

motion under Rule 50(b) had to be made within “10 days after the reception of a verdict,”

Fed. R. Civ. P. 50(b) (1938). See Proceedings of Advisory Comm. on Rules of Civ. P.,

March 1946, Vol. 3 at 534–37. (In 1963 Rule 50(b) was amended to conform to Rule

59(e), by providing that the motion must be made within 10 days of entry of judgment.)

To avoid confusion arising from the different time frames under the two rules, the bar

association recommended that Rule 59(e) be revised to state: “Except as provided in

Rule 50(b) a motion to alter or amend the judgment may be made within 10 days after the

entry of the judgment.” Id. at 536. The committee decided that the point was a

legitimate one; but the issue ultimately was addressed in the committee note (which

                                             15
should be read as stating that the time limit in Rule 59(e) does not apply to motions under

Rule 50(b)) rather than by changing the language of the proposed rule. See id. at 542–43.

In light of the revision to Rule 50(b) in 1963, the 1946 committee note is irrelevant today;

and it was never relevant to the issue before us.

       I cannot believe that this opinion will create no mischief going forward. When the

rationale is so puzzling, how can one predict the use that may be made of its language to

dispose of cases in the future? I am concerned that Defendants did not see fit to petition

for rehearing after the remarkable panel opinion. Perhaps after further study they will

reconsider the prospects for future review.4




4
  The panel opinion does not address whether Defendants can appeal the denial of its
prejudgment motions after the district court enters judgment for Plaintiff on remand from
this court. If Defendants are not permitted to appeal, they are being sorely penalized for
having succeeded on their timely first postjudgment motion. After all, there was nothing
for them to appeal after their motion was granted. If they do appeal (and we conclude
that the appeal is proper), it is certainly a possibility that we will end up reaching the
same conclusions as the district court did in rendering judgment on the Rule 59(e)
motion. I do not know how the interest in finality is served by requiring this convoluted
process.
                                               16
17-2199, Nelson v. City of Albuquerque

BACHARACH, J., concurring in the denial of rehearing en banc, joined by
BRISCOE, MATHESON, PHILLIPS, and MORITZ, JJ.

      I agree with the majority that sua sponte rehearing is unjustified. The

panel opinion is consistent with our precedents, and the dissent’s parade of

horribles is misguided. I write separately only to address two of the

dissent’s arguments about the panel opinion: (1) that we should have sua

sponte decided that the defendants’ first motion wasn’t really a Rule 59(e)

motion; and (2) that we misapplied precedents and failed to recognize the

district court’s right to correct a prior error. I respectfully disagree with

both arguments.

      First, the dissent frowns on our acceptance of the parties’ and district

court’s treatment of the defendant’s first motion as one under Rule 59(e).

In the seven-plus years following the filing of this motion, our dissenting

colleague is the first person to question everyone’s characterization of this

motion as a Rule 59(e) motion. So we lack any briefing on this issue.

      But the defendants not only haven’t questioned this characterization;

they have affirmatively used it to their advantage. The district court

initially characterized the first motion as a Rule 60 motion and denied

relief. The defendants then urged the district court to vacate the order

because it was based on a mischaracterization of the motion, insisting that

they had brought their motion under Rule 59(e) (not Rule 60). The court
agreed, vacating its ruling and acquiescing to the defendants’

characterization of their motion as one under Rule 59(e).

     Now, over seven years later, the dissent criticizes the panel for

failing to decide sua sponte that the defendants were wrong in the first

place when they insisted on characterizing their motion as one under Rule

59(e). Rather than sua sponte unraveling the defendants’ own successful

arguments over seven years ago, we treated the first motion just as the

parties and district court had done—as a Rule 59(e) motion. See Arizona v.

California, 530 U.S. 392, 412–13 (2000) (instructing that “courts must be

cautious about raising [issues] sua sponte, thereby eroding the principle of

party presentation so basic to our system of adjudication”). In my view, we

acted prudently by declining to sua sponte consider the issue in the

absence of briefing at any point in the proceedings. See JetAway Aviation,

LLC v. Bd. of Cty. Comm’rs of Cty. of Montrose, 754 F.3d 824, 850 (10th

Cir. 2014) (Holmes, J., concurring) (arguing that sua sponte affirmance on

alternative grounds in this case was “unwarranted and ill-advised” because

“no one ha[d] even hinted at affirming on the alternative grounds

[endorsed in a separate concurrence], and the district court did not even

have an opportunity to consider, much less rule on” the issue).

     Second, the dissent insists that our procedural ruling is not only

wrong but an “unprecedented” failure to recognize the district court’s
                                     2
ability to correct its own errors under Rule 59(e). Dissent at 1. The dissent

has misinterpreted both our panel opinion and our precedents.

      The panel opinion does not question the use of Rule 59(e) to correct

errors previously made. This rule allows the district court to rectify its

mistakes in the period immediately following entry of the judgment. White

v. N.H. Dep’t of Empl. Security, 455 U.S. 445, 450 (1982). But this does

not mean that a party can repeatedly make the same arguments in

successive Rule 59(e) motions in the 28 days following entry of the

judgment.

      In arguing that we are wrong, the dissent gives petitions for

rehearing as an example. As the dissent argues, petitions for rehearing are

a valuable tool permitting us to correct our mistakes. Even so, we do not

permit a party to file a second petition for rehearing after we’ve ruled on

the first one. See 10th Cir. R. 40.3 (2019) (“The court will accept only one

petition for rehearing from any party to an appeal. No motion to reconsider

the court’s ruling on a petition for rehearing may be filed.”).

      So it is with successive motions under Rule 59(e). For example, the

Fifth Circuit Court of Appeals has held that successive Rule 59(e) motions

are improper, explaining:

        The federal rules do not provide for a motion requesting a
        reconsideration of a denial of a reconsideration. Were such
        motions permitted, it is conceivable that a dissatisfied litigant
                                      3
           could continually seek reconsideration and prevent finality to
           the judgment. [The plaintiffs’] first Rule 59 motion was
           timely, was considered and denied, and exhausted [the
           plaintiffs’] right to reconsideration.

Benson v. St. Joseph Reg’l Health Ctr., 575 F.3d 542, 547 (5th Cir. 2009).

      Like the Fifth Circuit, we addressed the issue of successive post-

judgment motions in Servants of the Paraclete v. Does, 204 F.3d 1005

(10th Cir. 2000). In that case, there were three post-judgment motions:

      1.      a first Rule 60(b) motion (which was denied);

      2.      a motion to reconsider the denial of the first Rule 60(b) motion
              (which was denied); and

      3.      a Rule 59(e) motion (which was denied).

Servants of the Paraclete, 204 F.3d at 1008. The Servants of the Paraclete

panel addressed the combination of two post-judgment motions (the motion

to reconsider and the Rule 59(e) motion). Certainly there would be nothing

wrong with a motion to reconsider to correct clear error or prevent

manifest injustice. Id. at 1012. But we held that the party could not file

even one Rule 59(e) motion on the heels of an unsuccessful post-judgment

motion involving the same argument:

      Finally, we note that a motion for reconsideration and a
      successive Rule 60(b) motion [which the court elsewhere
      characterized as a Rule 59(e) motion] . . . are inappropriate
      vehicles to reargue an issue previously addressed by the court
      when the motion merely advances new arguments, or supporting
      facts which were available at the time of the original motion.
      Absent extraordinary circumstances, not present here, the basis
                                        4
      for the second motion must not have been available at the time
      the first motion was filed.

Id.

      We faithfully applied Servants of the Paraclete in the panel opinion

in Nelson, which involved two motions under Rule 59(e). We did not

question the availability of Rule 59(e) to correct a prior error. Here, for

example, no one has questioned the district court’s decision to decide the

merits of the first Rule 59(e) motion, which had been the defendants’ first

opportunity to challenge the correctness of the court’s award of judgment

as a matter of law to the plaintiffs. Just as we explained in Servants of the

Parcelete, however, the defendants could not repeat the same arguments in

a Rule 59(e) motion on the heels of the prior post-judgment motion. In

Nelson, that is all we said. We didn’t scuttle the use of Rule 59(e) or upend

our jurisprudence on post-judgment motions.

                                    * * *

      I respectfully disagree with the dissent on these two points. In my

view, the panel opinion was correct and the dissent’s parade of horribles is

based on a misunderstanding of both our panel opinion and our precedents.




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