Tenth Circuit Reaffirms the Narrow Scope of Rule 60(b) Appeals and Confirms Authority to Dismiss Timely Appeals as Frivolous

Introduction

In Sullivan v. Hartford Financial Services Group, consolidated appeals Nos. 24-3113 and 24-3114, the United States Court of Appeals for the Tenth Circuit addressed a pro se litigant’s attempt to reopen two previously-dismissed civil actions through Federal Rule of Civil Procedure 60(b), and his request for appointed counsel to prosecute that effort. The district court (D. Kan.) had denied Scott B. Sullivan’s Rule 60(b) motions and his motion to appoint counsel. On October 17, 2025, a Tenth Circuit panel (Judges Matheson, Carson, and Federico; Order and Judgment by Judge Joel M. Carson III) dismissed the appeals as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

These appeals followed earlier proceedings in which the district court entered adverse judgments on July 26 and July 27, 2023, and the Tenth Circuit ultimately affirmed those judgments on July 17, 2025, after reconstituting a panel due to a recusal. The issues before the court in the present appeals were narrow:

• Whether the district court abused its discretion in denying Sullivan’s Rule 60(b) motions (an extraordinary remedy) seeking relief from the final judgments;
• Whether the district court abused its discretion in denying appointment of counsel for Sullivan in the Rule 60(b) proceedings;
• Whether the appeals were timely and, if so, whether they should be dismissed as frivolous under § 1915(e)(2)(B)(i).

The defendants-appellees spanned numerous individuals and entities across the two district cases, including medical providers, law firms, insurers (including Hartford-related entities), and several judges. Although different parties populated the two suits, the appellate questions were functionally the same: the propriety of the Rule 60(b) denials and the denial of counsel.

Summary of the Opinion

The Tenth Circuit exercised jurisdiction under 28 U.S.C. § 1291, concluded the notices of appeal were timely as to the orders denying Rule 60(b) relief (even though they were well beyond thirty days from the underlying 2023 judgments), and held that the scope of review reached only the denial of the Rule 60(b) motions—not the merits of the underlying judgments. Applying abuse-of-discretion review, the court agreed with the district court that Sullivan’s Rule 60(b) motions:

• Identified no “newly discovered evidence” to justify relief under Rule 60(b)(2), particularly given the original dismissal included Rule 8 deficiencies; and
• Merely reasserted arguments previously raised and rejected, thereby failing to demonstrate the “extraordinary circumstances” required under Rule 60(b)(6).

The court likewise found no abuse of discretion in the denial of appointed counsel because Sullivan failed to carry his burden to show sufficient merit in his claim to justify an appointment in a civil case. Finally, because Sullivan’s appellate arguments simply attempted to relitigate the merits of the original cases—contrary to the confines of Rule 60(b) and established precedent—the court dismissed the appeals as frivolous under § 1915(e)(2)(B)(i).

Analysis

Precedents Cited and Their Influence

• Servants of the Paraclete v. Does, 204 F.3d 1005 (10th Cir. 2000): The court relied on Servants of the Paraclete for two core propositions:
  • Scope of appeal: An appeal from the denial of a Rule 60(b) motion brings up only that denial, not the underlying judgment. This was decisive in rejecting appellees’ broad timeliness challenge and in cabin the appellate review.
  • Rule 60(b) limits: A motion for reconsideration is not a vehicle to revisit issues already addressed or to advance arguments that could have been raised previously. This principle undercut Sullivan’s attempt to reargue the merits via Rule 60(b).
• Choice Hospice, Inc. v. Axxess Tech. Sols., Inc., 125 F.4th 1000 (10th Cir. 2025): Cited for the Rule 60(b) standard of review and characterization of Rule 60(b) relief as “an extraordinary remedial procedure.” This case supplied the abuse-of-discretion framework and the “arbitrary, capricious, whimsical, or manifestly unreasonable” metric for reversals.
• McCarthy v. Weinberg, 753 F.2d 836 (10th Cir. 1985): Longstanding authority that appointment of counsel in a civil case is discretionary and that the burden rests on the litigant to show sufficient merit. This anchored the court’s acceptance of the district court’s denial of counsel.
• Braley v. Campbell, 832 F.2d 1504 (10th Cir. 1987): Defines a frivolous appeal as one where the result is obvious or the arguments wholly without merit. The court applied this test to dismiss Sullivan’s timely but meritless appeals under 28 U.S.C. § 1915(e)(2)(B)(i).
• Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005): The court reiterated that while pro se filings are liberally construed, courts cannot act as counsel and construct arguments. This underscored why Sullivan’s conclusory and repetitive assertions could not carry his Rule 60(b) burden.

Legal Reasoning

The panel’s reasoning proceeded in three principal steps.

1. Timeliness and the Scope of Review: Several appellees (the “MVP Appellees”) moved to dismiss based on untimely notices of appeal relative to the July 2023 judgments. The court acknowledged the timeliness problem for any appeal of those original judgments but clarified that Sullivan’s notices were timely as to the orders denying Rule 60(b) relief because they were filed within 30 days of those orders. The consequence of this distinction, rooted in Servants of the Paraclete, is that only the Rule 60(b) denials—not the underlying merits—were reviewable.
2. Rule 60(b) Standards Applied: The district court treated the motion under Rule 60(b)(2) and 60(b)(6) as the only plausible bases:
   • Rule 60(b)(2) (newly discovered evidence): Sullivan identified no new evidence warranting relief—an especially significant failure because the original dismissals included inadequate pleading under Rule 8. New evidence cannot cure a pleading that fails to state a claim unless it is tethered to a motion to reopen for amendment grounded in legitimate “newly discovered” facts meeting Rule 60(b)(2)’s criteria, which were not met.
   • Rule 60(b)(6) (catch-all): The motion largely repeated arguments previously presented and rejected, falling far short of the “extraordinary circumstances” required for subparagraph (6). The catch-all cannot be used to circumvent the constraints of the other clauses or to relitigate previously decided issues.
   Applying Choice Hospice’s deferential standard, the Tenth Circuit found no abuse of discretion; the district court’s determinations were neither arbitrary nor manifestly unreasonable.
3. Denial of Appointed Counsel: Under McCarthy, appointment of counsel in a civil matter is discretionary and depends on factors such as the apparent merits, factual and legal complexity, and the litigant’s ability to present the case. The district court expressly considered these factors and reasonably concluded Sullivan had not demonstrated sufficient merit to warrant counsel. The panel found no abuse of discretion.

Having rejected the substantive challenges, the court then evaluated the appeals’ character and dismissed both as frivolous. Invoking Braley and § 1915(e)(2)(B)(i), the panel concluded that Sullivan’s appellate arguments were merely attempts to reargue the dismissed cases’ merits—an “obvious” loser given the limited scope of Rule 60(b) and the prior affirmances. The statute authorizes dismissal “at any time” of a frivolous appeal, even notwithstanding any filing fee paid or IFP status.

Impact

Although issued as an unpublished Order and Judgment, the decision is significant for several reasons and is citable for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

• Rule 60(b) is not a second appeal: The court’s application of Servants of the Paraclete reinforces that Rule 60(b) cannot be used to rehash previously rejected arguments or to raise arguments that should have been made earlier. Litigants—especially pro se parties—must marshal genuinely new evidence or demonstrate truly extraordinary circumstances.
• Appeals from Rule 60(b) denials remain strictly confined: Even a timely notice of appeal following a Rule 60(b) denial does not reopen the underlying judgment. Counsel should be exacting in issue framing: the appellate court will review only whether the district court abused its discretion in denying Rule 60(b) relief.
• Frivolous-appeal screening is robust: The Tenth Circuit will dismiss as frivolous under § 1915(e)(2)(B)(i) even a technically timely appeal if the appellant merely repackages previously rejected merits arguments. This underscores a practical gatekeeping function in IFP and similar contexts.
• Appointment of counsel in civil cases remains exceptional: The court’s affirmance highlights that a litigant must first show at least colorable merit; absent that, neither complexity nor pro se status will generally tip the scales toward appointment.
• Finality and law-of-the-case: By recognizing prior affirmances and the limited function of Rule 60(b), the decision fortifies the finality of judgments and the law-of-the-case doctrine’s role in preventing serial relitigation.

Complex Concepts Simplified

• Rule 60(b), in plain terms: This rule allows a district court to relieve a party from a final judgment in specific, exceptional circumstances. Relevant here:
  • (b)(2) applies when genuinely “newly discovered evidence” emerges that could not have been found with reasonable diligence in time and would likely change the outcome.
  • (b)(6) is a catch-all for “any other reason” justifying relief, reserved for extraordinary circumstances. It cannot be used simply to argue that the court “got it wrong” or to rehash old points.
• Abuse of discretion: Appellate courts do not re-try the case. They ask whether the district court’s decision was arbitrary, capricious, whimsical, or manifestly unreasonable. If reasonable judges could disagree, the district court’s ruling generally stands.
• Appeals from Rule 60(b) denials: A notice of appeal filed within 30 days of the Rule 60(b) denial is timely as to that denial. But the appellate court does not revisit the original judgment—only whether the denial of relief was an abuse of discretion.
• Frivolous appeals and § 1915(e)(2)(B)(i): An appeal is frivolous if the outcome is obvious or the arguments lack any legal merit. The statute requires the court to dismiss a frivolous appeal at any time, reflecting a commitment to conserve judicial resources.
• Appointment of counsel in civil cases: There is no automatic right to counsel. Courts weigh the merits, complexity, and the litigant’s abilities. Weak or repetitious claims rarely warrant appointment.
• Rule 8 pleading standards: A complaint must contain sufficient factual matter to state a plausible claim. If a complaint is dismissed for Rule 8 deficiencies, “new evidence” later raised under Rule 60(b)(2) must be materially significant and previously undiscoverable; simply reframing prior assertions is insufficient.

Conclusion

Sullivan v. Hartford Financial Services Group offers a clear, practical reaffirmation of several settled principles:

• An appeal from the denial of Rule 60(b) relief is timely if taken within 30 days of that order but reaches only that denial—not the merits of the underlying judgment.
• Rule 60(b) relief is extraordinary and cannot serve as a vehicle to relitigate issues or to raise arguments that should have been raised earlier.
• Denials of appointed counsel in civil cases are reviewed for abuse of discretion, with the burden squarely on the applicant to show sufficient merit.
• Even timely appeals may be dismissed as frivolous under § 1915(e)(2)(B)(i) when the outcome is obvious or the arguments are wholly without merit.

For litigants and counsel, the message is straightforward: finality matters. To justify reopening a final judgment under Rule 60(b), parties must present genuinely new and material evidence or identify extraordinary circumstances. Repackaging prior assertions will not suffice. The Tenth Circuit’s decision, while unpublished, provides persuasive guidance that will likely deter similar attempts to use Rule 60(b) as a second appeal and reinforces the judiciary’s commitment to efficiency, finality, and principled appellate review.

Procedural notes:

• Panel determined oral argument would not assist (Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G)).
• Order and Judgment is nonprecedential except under law-of-the-case, res judicata, and collateral estoppel; citable for persuasive value (Fed. R. App. P. 32.1; 10th Cir. R. 32.1).
• Underlying judgments were previously affirmed: Sullivan v. Graham, Nos. 23-3153, 23-3154, 2025 WL 1983231 (10th Cir. July 17, 2025) (per curiam, unpublished).