Rule 60(b) Appeals Stand Alone: Timeliness, Scope, and Frivolousness in Sullivan v. Graham

Introduction

In Sullivan v. Graham, Nos. 24-3113 & 24-3114 (10th Cir. Oct. 17, 2025), a panel of the U.S. Court of Appeals for the Tenth Circuit (Judges Matheson, Carson, and Federico) dismissed as frivolous two related appeals brought by pro se litigant Scott B. Sullivan. The appeals challenged a district court’s denial of relief under Federal Rule of Civil Procedure 60(b) and the denial of appointed counsel.

The decision is an unpublished order and judgment, submitted without oral argument, and thus not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. Nevertheless, it offers persuasive clarification on two recurring procedural points:

• Appeals from an order denying Rule 60(b) relief are timely if noticed within 30 days of that denial, even if the time to appeal the underlying judgment has long since passed—and such appeals reach only the denial order, not the merits of the underlying judgment.
• Rule 60(b) is not a vehicle to reargue the merits, and appeals that merely reprise previously rejected arguments may be dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

The disputes below involved a wide array of defendants—including physicians, law firms, insurers, and several state and federal judicial officers—and culminated in final adverse judgments entered by the District of Kansas in July 2023. The Tenth Circuit previously affirmed those judgments in an unpublished per curiam disposition. After a recusal issue required vacatur of an earlier panel’s order, a reconstituted panel again affirmed on July 17, 2025. Mr. Sullivan then sought Rule 60(b) relief in the district court, which was denied. The present appeals followed.

Summary of the Opinion

The court exercised jurisdiction under 28 U.S.C. § 1291. It first addressed a motion to dismiss by certain appellees (the “MVP Appellees”), who argued the notices of appeal were untimely because they were filed more than 30 days after the 2023 final judgments and because Mr. Sullivan’s Rule 60(b) motions were themselves untimely and therefore did not toll the Federal Rule of Appellate Procedure 4 deadline.

The panel agreed that the time to appeal the original judgments had expired, but held that the notices of appeal were timely as to the district court’s later order denying Rule 60(b) relief, filed within 30 days of that denial. Invoking Servants of the Paraclete v. Does, it emphasized that an appeal from a Rule 60(b) denial addresses only that denial—not the underlying judgment.

Turning to the merits, the panel reviewed for abuse of discretion the denials of Rule 60(b) relief and appointment of counsel. It affirmed both. The district court had reasonably concluded that Mr. Sullivan offered no “newly discovered evidence” under Rule 60(b)(2), and that his Rule 60(b)(6) arguments largely repeated assertions already rejected. The court further held that Mr. Sullivan failed to show sufficient merit or complexity to warrant appointed counsel.

Concluding that the appeals merely attempted to reargue prior merits without presenting a cognizable Rule 60(b) basis, the panel deemed them frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and dismissed them.

Analysis

Precedents Cited and Their Influence

• Servants of the Paraclete v. Does, 204 F.3d 1005 (10th Cir. 2000)
  • Scope of appellate review: An appeal from the denial of a Rule 60(b) motion reaches only that denial, not the underlying judgment. This limited scope shaped the court’s refusal to revisit the 2023 merits dismissals.
  • Limits on reconsideration: A Rule 60-type motion is not an appropriate vehicle “to revisit issues already addressed or advance arguments that could have been raised in prior briefing.” The panel relied on this to reject Mr. Sullivan’s re-argument of prior claims.
• Choice Hospice, Inc. v. Axxess Tech. Sols., Inc., 125 F.4th 1000, 1011 (10th Cir. 2025)
  • Reiterates that Rule 60(b) is an “extraordinary remedial procedure” and that denials are reviewed for abuse of discretion—defined as decisions that are “arbitrary, capricious, whimsical, or manifestly unreasonable.” This framed the deferential lens through which the panel evaluated the district court’s denials.
• McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)
  • Establishes that appointment of counsel in civil cases is discretionary and that the applicant bears the burden of showing sufficient merit to warrant counsel. The district court’s factor-based denial fit well within this standard.
• Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987)
  • Defines a frivolous appeal as one where the result is obvious or the arguments are wholly without merit. This provided the yardstick for dismissal under 28 U.S.C. § 1915(e)(2)(B)(i).
• Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)
  • Clarifies that while pro se filings are construed liberally, courts do not serve as counsel for pro se litigants by constructing arguments or combing the record. This principle undergirded the panel’s treatment of Mr. Sullivan’s filings.
• Rules and Statutes
  • Fed. R. Civ. P. 60(b)(2), (b)(6): The district court found no new evidence under (b)(2) and no extraordinary circumstances under (b)(6).
  • Fed. R. App. P. 4(a)(1)(A): 30-day deadline for civil appeals; an appeal from a Rule 60(b) denial is timely if noticed within 30 days of that denial, even absent a timely appeal from the underlying judgment.
  • 28 U.S.C. § 1915(e)(2)(B)(i): Authorizes dismissal of frivolous appeals “at any time,” a power the panel exercised here.

Legal Reasoning

The panel’s reasoning proceeded in three steps: timeliness and scope, standards of review, and application to the record.

1. Timeliness and Scope of the Appeals

   Although the MVP Appellees correctly noted that the appeal period from the 2023 final judgments had expired and that untimely Rule 60 motions do not toll the Rule 4 clock, the court held that Mr. Sullivan’s notices were nonetheless timely as to the district court’s subsequent order denying Rule 60(b) relief because they were filed within 30 days of that order. Citing Servants of the Paraclete, the panel emphasized that such an appeal reaches only the Rule 60(b) denial, not the underlying merits judgments.

2. Standards of Review and the Nature of Rule 60(b)

   Rule 60(b) is an “extraordinary” remedy. The panel reviewed the denial of Rule 60(b) relief for abuse of discretion, asking whether the district court’s decision was “arbitrary, capricious, whimsical, or manifestly unreasonable.” Likewise, the denial of appointed counsel is discretionary and hinges on the movant’s showing of sufficient merit and need.

3. Application
   • Rule 60(b)(2)—Newly Discovered Evidence: The district court found that Mr. Sullivan offered no new evidence. Given that the underlying cases were dismissed, in part, for failure to satisfy the pleading rules (Fed. R. Civ. P. 8), the absence of genuinely new, outcome-altering evidence undermined any claim to relief under (b)(2).
   • Rule 60(b)(6)—Catchall: The district court concluded that Mr. Sullivan’s motion largely repeated assertions already rejected. The Tenth Circuit agreed that re-argument does not amount to “extraordinary circumstances” warranting relief, aligning with Servants of the Paraclete’s bar on using reconsideration to revisit prior rulings.
   • Appointment of Counsel: The district court weighed standard factors—merits, factual complexity, litigant’s ability to present the case, and legal complexity—and reasonably denied the request. The panel found no abuse of discretion.
   • Frivolousness on Appeal: Because Mr. Sullivan’s appellate arguments did not identify any cognizable Rule 60(b) ground or abuse of discretion, and instead attempted to rehash the merits of previously dismissed claims, the panel concluded the appeals were frivolous under Braley and dismissed them pursuant to § 1915(e)(2)(B)(i).

Impact and Practical Significance

Although unpublished, the opinion has several practical implications for litigants and courts within the Tenth Circuit and potentially beyond (as persuasive authority):

• Clear demarcation of appellate scope: Parties cannot use an appeal from the denial of Rule 60(b) relief to revisit the underlying judgment; arguments must target the denial itself. This steers appellants toward the correct procedural vehicle and timeframe for challenging the merits.
• Timeliness reinforced: A notice of appeal filed within 30 days of a Rule 60(b) denial is timely as to that order even if the deadline to appeal the original judgment has expired. This confirms the “stand-alone” nature of such appeals for timing purposes.
• Rule 60(b) as an extraordinary tool, not a second appeal: The court’s reliance on Servants of the Paraclete and Choice Hospice underscores that Rule 60(b) cannot be used to reargue the merits or to raise issues that could have been presented earlier.
• Screening out meritless appeals: The use of § 1915(e)(2)(B)(i) to dismiss frivolous appeals—“at any time” and “notwithstanding any filing fee”—signals a willingness to conserve judicial resources when appellants repackage meritless arguments.
• Appointment of counsel in civil cases remains exceptional: Absent a showing of substantial merit or complexity, courts will rarely appoint counsel for pro se litigants pursuing Rule 60(b) relief.
• Procedural hygiene for future litigants: Litigants seeking Rule 60(b) relief should carefully identify the correct subsection, present genuinely new evidence (for (b)(2)) or extraordinary circumstances (for (b)(6)), and avoid re-arguing settled issues. Appeals should frame alleged abuses of discretion rather than relitigating the merits.

Complex Concepts Simplified

• Rule 60(b) Relief
  • Rule 60(b) allows a court to relieve a party from a final judgment for specific reasons. Two invoked here were:
  • (b)(2): Newly discovered evidence that could not have been found earlier with reasonable diligence and that would likely change the outcome.
  • (b)(6): A “catchall” for “any other reason” justifying relief, reserved for extraordinary circumstances.
  • Key limits: It is not a substitute for an appeal, and it cannot be used to reargue issues previously decided or that could have been raised before.
• Abuse of Discretion
  • An appellate court defers to the district court’s judgment unless it was arbitrary, capricious, whimsical, or manifestly unreasonable. This is a high bar for reversal on Rule 60(b) denials and on requests for appointed counsel.
• Timeliness of Appeals from Rule 60(b) Denials
  • In civil cases, a notice of appeal generally must be filed within 30 days. If you are appealing the denial of a Rule 60(b) motion, the 30-day clock runs from the date of that denial. But that appeal reaches only the denial order—not the original judgment.
• Frivolous Appeals and § 1915(e)(2)(B)(i)
  • An appeal is frivolous if the outcome is obvious or the arguments lack any merit. Courts must dismiss such appeals at any time—even if fees have been paid—to prevent misuse of judicial resources.
• Pro Se Leniency—Its Limits
  • Courts read pro se filings liberally to understand the substance of the claims. But judges do not act as lawyers: they do not construct arguments or search the record to make a case for the litigant.
• Unpublished Opinions and Precedential Effect
  • Unpublished orders like this one are not binding precedent except under law-of-the-case, res judicata, and collateral estoppel. They can, however, be cited for persuasive value consistent with the rules.
• Appointment of Counsel in Civil Cases
  • Civil litigants do not have a right to appointed counsel. Courts may appoint counsel in exceptional cases after considering factors such as likely merit, complexity, and the plaintiff’s ability to present the case.

Conclusion

Sullivan v. Graham reinforces two bedrock points about post-judgment practice in the Tenth Circuit: first, appeals from denials of Rule 60(b) relief stand on their own timeliness and scope—they are timely if noticed within 30 days of the denial and they reach only that denial; second, Rule 60(b) is not a vehicle for rehashing old arguments. When appellants merely relitigate the merits, their appeals may properly be dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

The panel’s application of Servants of the Paraclete, Choice Hospice, McCarthy, and Braley reflects a straightforward, well-settled approach: deferential review of Rule 60(b) denials, strict limits on using reconsideration as a second appeal, and vigilance in screening out meritless appellate challenges. For litigants, the message is clear: to obtain Rule 60(b) relief, present truly new evidence or extraordinary circumstances; to obtain counsel, demonstrate sufficient merit and complexity; and to appeal, frame arguments around the denial order itself, not the long-final merits.