United States v. 31.63 Acres of Land, 840 F.2d 760 (10th Cir. 1988). · Go Syfert
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United States v. 31.63 Acres of Land, 840 F.2d 760 (10th Cir. 1988). Cases Citing This Book View Copy Cite
34 citation events (18 in the last 25 years) across 8 distinct courts.
Strongest positive: Keo Ratha v. Rubicon Resources, LLC (ca9, 2026-02-20)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) Keo Ratha v. Rubicon Resources, LLC
9th Cir. · 2026 · confidence medium
Cir. 2001) (“[A]n appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” (quoting Browder, 434 U.S. at 263 n.7)); S.E.C. v. McNulty, 137 F.3d 732, 741 (2d Cir. 1998) (“The appeal from the denial of a motion to vacate pursuant to Rule 60(b) brings up for review only the validity of that denial, not the merits of the underlying judgment itself.”); United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir. 1988) (“When a party appeals from an order denying a Rule 60(b) motion, the appeal ‘does not bring up 60 RATHA V.
discussed Cited as authority (rule) Diana W.R. Myers v. Griffin R. Myers
Wyo. · 2022 · confidence medium
A party seeking relief under Rule 60(b)(6) “must show the existence of unusual circumstances that justify the extraordinary relief requested.” Essex Holding, LLC v. Basic Props., Inc., 2018 WY 111 , ¶ 72, 427 P.3d 708, 729 (Wyo. 2018) (quoting United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir. 1988)).
discussed Cited as authority (rule) Clint Raymond Webb v. State of Wyoming, Ex Rel. Department of Family Services, Child Support Enforcement Division and Julie Alia Webb (2×) also: Cited "see"
Wyo. · 2020 · confidence medium
He also argues for the first time on appeal that (1) he was denied his rights to due process and equal protection because he was not given an opportunity to rebut the mandatory minimum $50 child support amount; and (2) the district court abused its discretion in ordering him to pay $50 per month in child support as it should have deviated from that amount due to his inability to earn an income while incarcerated. [¶10] To obtain relief under Rule 60(b)(6), Clint had to “‘show the existence of unusual circumstances that justify the extraordinary relief requested.’” Essex Holding, LLC v…
cited Cited as authority (rule) Kira Kay Olson v. Ronald Russell Schriner
Wyo. · 2020 · confidence medium
United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir. 1988) (citing Morris v. Adams-Millis Corp., 758 F.2d 8 1352, 1357 (10th Cir. 1985) ); see also Gifford, 639 P.2d at 1388 .
discussed Cited as authority (rule) Selene Finance LP v. United States Bankruptcy Court for the Western District of Oklahoma
10th Cir. BAP · 2020 · confidence medium
Rote application of these standards would render Appellant’s Motion to Vacate a motion under Rule 59 31 See Artes-Roy v. City of Aspen, 31 F.3d 958 , 961 n. 5 (10th Cir. 1994) (permitting review of underlying summary judgment ruling where the notice of appeal only referenced the denial of the Rule 59 motion if the intent to appeal underlying judgment is clear, and the opposing party was not misled or prejudiced). 32 See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir. 1988) (citing Browder v. Dir., Dept. of …
discussed Cited as authority (rule) Baker v. Gilmore
D. Kan. · 2019 · confidence medium
When a moving party instead seeks relief under Rule 60(b)(6), the party “must show the existence of unusual circumstances that justify the extraordinary relief requested.” United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir. 1988).
discussed Cited as authority (rule) Essex Holding, LLC v. Basic Props., Inc.
Wyo. · 2018 · confidence medium
"In order to obtain relief under Rule 60(b)(6) the appellant must show the existence of unusual circumstances that justify the extraordinary relief requested." 31.63 Acres of Land , 840 F.2d at 761 (citations omitted).
discussed Cited as authority (rule) Trans-Exchange Corp. v. World's Largest Pearl Co.
10th Cir. · 2012 · confidence medium
In this appeal, Plaintiffs are “simply attempting to use Rule 60(b) as a substitute for a timely appeal on the merits[,] and that is not permitted.” United States v. 31.63 Acres of Land, 840 F.2d 760, 762 (10th Cir.1988).
discussed Cited as authority (rule) Wendy's International, Inc. v. Nu-Cape Construction, Inc.
M.D. Fla. · 1996 · confidence medium
See Smith v. Evans, 853 F.2d 155, 159 (3d Cir.1988); U.S. v. 31.63 Acres of Land, 840 F.2d 760, 761-62 (10th Cir.1988) (arguing that the denial of attorney fees based on a misapplication of the requirements of the Equal Access to Justice Act does not provide a basis for relief under Rule 60(b)); Swam v. U.S., 327 F.2d 431, 433 (7th Cir.), cert. denied, 379 U.S. 852 , 85 S.Ct. 98 , 13 L.Ed.2d 55 (1964).
discussed Cited as authority (rule) No. 96-1047
10th Cir. · 1996 · confidence medium
Van Skiver, 952 F.2d at 1243 ; see also Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1439 (10th Cir.1990); United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir.1988); Morris v. Adams-Millis Corp., 758 F.2d 1352 , 1356 & n. 5 (10th Cir.1985); V.T.A., Inc. v. Airco, Inc., 597 F.2d 220 , 223-24 & n. 8 (10th Cir.1979) (stating general rule but noting denial of Rule 60(b)(4) motion asserting underlying judgment is void necessarily requires the court of appeals to review the validity of the underlying judgment).
cited Cited as authority (rule) Horton v. Janes
10th Cir. · 1996 · confidence medium
E.g., Van Skiver, 952 F.2d at 1243 ; United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir.1988).
discussed Cited as authority (rule) Carpenter v. Williams
10th Cir. · 1996 · confidence medium
Van Skiver, 952 F.2d at 1243 ; see also Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437 , 1439 (10th Cir.1990); United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir. 1988); Morris v. Adams-Millis Corp., 758 F.2d 1352 , 1356 & n. 5 (10th Cir.1985); V.T.A., Inc. v. Airco, Inc., 597 F.2d 220 , 223-24 & n. 8 (10th Cir.1979) (stating general rule but noting denial of Rule 60(b)(4) motion asserting underlying judgment is void necessarily requires the court of appeals to review the validity of the underlying judgment).
discussed Cited as authority (rule) Jamie A. Vess v. United States Air Force, Sheila E. Widnall, Secretary United States of America
10th Cir. · 1994 · signal: cf. · confidence medium
Cf. United States v. 31.63 Acres of Land, 840 F.2d 760, 762 (10th Cir.1988)(rejecting attempt to use Rule 60(b) as a substitute for appeal on the merits). 9 The judgment of the United States District Court for the District of New Mexico is AFFIRMED. ** Honorable John L.
cited Cited as authority (rule) Eugene R. Orner v. Donna E. Shalala, Secretary of the United States Department of Health & Human Services
10th Cir. · 1994 · confidence medium
United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir.1988); see also Johnston v. Cigna Corp., 14 F.3d 486, 497 (10th Cir.1993).
discussed Cited as authority (rule) Raymond J. Van Skiver Alma L. Van Skiver v. United States of America and John Does
10th Cir. · 1992 · confidence medium
United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir.1988); V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 (10th Cir.1979). 3 The district court did not abuse its discretion in denying the plaintiffs’ motion to reconsider.
discussed Cited as authority (rule) Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Company, Inc.
10th Cir. · 1990 · confidence medium
Browder v. Director, Dep't of Corrections, 434 U.S. 257 , 263 n. 7, 98 S.Ct. 556 , 560 n. 7, 54 L.Ed.2d 521 (1978); United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir.1988); Morris v. Adams-Millis Corp., 758 F.2d at 1357 ; V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 (10th Cir.1979). 10 Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.
discussed Cited as authority (rule) Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co.
10th Cir. · 1990 · confidence medium
Browder v. Director, Dep’t of Corrections, 434 U.S. 257 , 263 n. 7, 98 S.Ct. 556 , 560 n. 7, 54 L.Ed.2d 521 (1978); United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir.1988); Morris v. Adams-Millis Corp., 758 F.2d at 1357 ; V.T.A., Inc. v. Aireo, Inc., 597 F.2d 220 , 224 (10th Cir.1979).
cited Cited as authority (rule) New England Mutual Life Insurance v. Anderson
10th Cir. · 1989 · confidence medium
United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir.); DeVargas v. Montoya, 796 F.2d 1245, 1258 (10th Cir.).
cited Cited as authority (rule) New England Mutual Life Insurance Company v. Lorna Anderson
10th Cir. · 1989 · confidence medium
United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir.); DeVargas v. Montoya, 796 F.2d 1245, 1258 (10th Cir.).
cited Cited "see" Ebel v. Ebel
10th Cir. · 1997 · signal: see · confidence high
See United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir. 1988).
cited Cited "see" In re Ebel
10th Cir. · 1997 · signal: see · confidence high
See United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir.1988).
discussed Cited "see, e.g." Youhan v. Hyperproof (2×)
D. Utah · 2024 · signal: see also · confidence low
Comm’rs for Converse Cnty., 52 F.3d 858, 861 (10th Cir. 1995). 38 Id.; see also Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (“The Federal Rules of Civil Procedure do not recognize a ‘motion to reconsider.’ Instead, the rules allow a litigant subject to an adverse judgment to file either a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e) or a motion seeking relief from the judgment pursuant to Fed.R.Civ.P. 60(b).”). 39 See Van Skiver, 952 F.2d at 1244 ; see also U.S. v. 31.63 Acres of Land, 840 F.2d 760 , 761 n.4 (10th Cir. 1988) (stating a pa…
Retrieving the full opinion text from the archive…
United States
v.
31.63 Acres of Land, More or Less, Situate in Oklahoma County, State of Oklahoma C.M. Faris, Administrator of Clarence R. Faris, A/K/A Clarence Ray Faris, A/K/A Clarence Ray Farris, Deceased Mary Nekvapil, A/K/A Mary Nekvipil William C. Peddicord Thomas I. Baker Carol B. Cardenas Jerry W. Baker Marguerite Baker Henry Nekvapil Ira W. Baker Estate Heirs of Ira W. Baker County Treasurer & Board of County Commissioners, Oklahoma County Southwest Title & Trust Company, Trustee Richard Ledbetter, A/K/A Richard K. Ledbetter James E. Jordan and James Gregory, Tinker Area Investors
85-1640.
Court of Appeals for the Tenth Circuit.
Feb 26, 1988.
840 F.2d 760
1988 U.S. App. LEXIS 2395
Cited by 7 opinions  |  Published

840 F.2d 760

10 Fed.R.Serv.3d 853

UNITED STATES of America, Plaintiff/Appellee,
v.
31.63 ACRES OF LAND, More or Less, Situate in Oklahoma
County, State of Oklahoma; C.M. Faris, Administrator of
Clarence R. Faris, a/k/a Clarence Ray Faris, a/k/a Clarence
Ray Farris, Deceased; Mary Nekvapil, a/k/a Mary Nekvipil;
William C. Peddicord; Thomas I. Baker; Carol B. Cardenas;
Jerry W. Baker; Marguerite Baker; Henry Nekvapil; Ira W.
Baker Estate; Heirs of Ira W. Baker; County Treasurer &
Board of County Commissioners, Oklahoma County; Southwest
Title & Trust Company, Trustee; Richard Ledbetter, a/k/a
Richard K. Ledbetter; James E. Jordan; and James Gregory, Defendants,
Tinker Area Investors, Defendant/Appellant.

No. 85-1640.

United States Court of Appeals,
Tenth Circuit.

Feb. 26, 1988.

Thomas E. Hookano, Acting Asst. Atty. Gen., William S. Price, U.S. Atty., and John E. Green, Asst. U.S. Atty., Oklahoma City, Okl., Robert L. Klarquist and Jacques B. Gelin, Dept. of Justice, Washington, D.C., for plaintiff/appellee U.S.

LeRoy Powers and Charles D. Crandall, Oklahoma City, Okl., for defendant/appellant Tinker Area Investors.

Before McKAY, LOGAN and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

[*~760]1

This is an appeal from the district court's order denying defendant landowner's motion for relief under Fed.R.Civ.P. 60(b) from an earlier order that denied a request for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412. The sole issue on appeal is whether the district court abused its discretion in denying relief. We find no abuse of discretion and affirm.[1]

2

On April 28, 1982 the United States initiated a condemnation action to acquire fee title to a 31.63 acre tract owned by Tinker Area Investors ("Tinker"). In 1983, the district court referred the trial to a commission appointed pursuant to Fed.R.Civ.P. 71. The commission awarded Tinker $664,230.00, or $21,000.00 per acre. On May 17, 1984 the district court confirmed the award and entered judgment. Because Tinker was awarded more than the government's deposit, it then filed an application for attorney's fees and expenses under the EAJA. On November 27, 1984, the district court entered an order denying that application. Tinker did not appeal that order, but on December 21, 1984 filed a motion under Fed.R.Civ.P. 60(b)(6)[2] asking the district court to set aside the order denying attorney's fees. Tinker argued that the evidence did not support the court's finding that the government's position was "substantially justified."[3] On January 30, 1985 the district court denied Tinker's motion for relief. Tinker filed a timely notice of appeal from the January 30 order of the district court.

3

A district court ruling on a motion under Rule 60(b) will not be overturned absent an abuse of discretion. Morris v. Adams-Millis Corp., 758 F.2d 1352, 1357 (10th Cir.1985). Moreover, a motion under Rule 60(b) cannot be used as a substitute for appeal. Id. When a party appeals from an order denying a Rule 60(b) motion, the appeal "does not bring up the underlying judgment for review." Id. (quoting Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978)); see also V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 (10th Cir.1979).

4

In order to obtain relief under Rule 60(b)(6) the appellant must show the existence of unusual circumstances that justify the extraordinary relief requested. Morris, 758 F.2d at 1359. See also Margoles v. Johns, 798 F.2d 1069, 1073 (7th Cir.1986) ("relief under 60(b)(6) is warranted only upon a showing of extraordinary circumstances that create a substantial danger that the underlying judgment was unjust"), cert. denied, --- U.S. ----, 107 S.Ct. 2482, 96 L.Ed.2d 374 (1987); Pierce v. Cook & Co. Inc., 518 F.2d 720, 723 (10th Cir.1975) (relief under 60(b)(6) requires "extraordinary situation"), cert. denied, 423 U.S. 1079, 96 S.Ct. 866, 47 L.Ed.2d 89 (1976). Here, Tinker makes no attempt to identify a basis for relief, but merely argues the merits of the underlying judgment. In his motion to the district court and on appeal, Tinker argues only that the district court incorrectly concluded that the government's position was "substantially justified."[4]

5

Even if the district court's construction of the EAJA requirements was clearly wrong, Tinker would not be entitled to relief under Rule 60(b)(6). Tinker's claim here is indistinguishable from other decisions where Rule 60(b) was held to be an inappropriate vehicle for challenging substantive decisions on questions of attorney's fees. See Gary W. v. Louisiana, 622 F.2d 804, 805 (5th Cir.1980) ("even if the trial court applied an incorrect legal standard when assessing attorney's fees, the proper way to challenge its ruling in the court of appeals is by appeal of its ruling, not by appeal of a denial of a Rule 60(b) motion"), cert. denied, 450 U.S. 994, 101 S.Ct. 1695, 68 L.Ed.2d 193 (1981); O'Grady v. Secretary of United States Dep't of Health and Human Servs., 661 F.Supp. 1030, 1034 (E.D.N.Y.1987) ("Purported deficiencies in the amount of and procedures for attorneys fee awards clearly do not constitute a circumstance or hardship that cries out for the unusual remedy of the reopening of a final judgment under Rule 60(b)(6)."). Tinker is simply attempting to use Rule 60(b) as a substitute for a timely appeal on the merits and that is not permitted.

[*~761]6

Finding no abuse of discretion in the district court's decision, we AFFIRM.

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8. The cause is therefore ordered submitted without oral argument

2

Rule 60(b) provides in part:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment.

3

In denying the fee award, the district court found that Tinker was a prevailing party, but that the government's position was substantially justified. Under the terms of the EAJA, a prevailing party against the government is entitled to attorney's fees "unless the court finds the position of the United States was substantially justified." 28 U.S.C. 2412(d)(1)(A). See United States v. Charles Gyurman Land & Cattle Co., 836 F.2d 480 (10th Cir.1987)

4

Tinker's motion to the district court relied explicitly on Rule 60(b)(6). R.Vol. I at 189. We decline to recast his motion under Rule 60(b)(1) to allege a legal mistake by the district court. In these circumstances, that approach would also be unsuccessful. If Tinker were seeking relief by alleging that the district court made such a mistake, that claim should have been raised on appeal from the judgment or by a motion to amend under Rule 59(e). See United States v. 329.73 Acres of Land, 695 F.2d 922, 925 (5th Cir.1983). In this regard, Tinker's claim is distinguishable from other cases where courts of appeals have considered alleged mistakes of law under Rule 60(b)(1). See Morris, 758 F.2d at 1359; Lairsey v. Advance Abrasives Co., 542 F.2d 928 (5th Cir.1976)