UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

GARY A. KEMPER, Plaintiff-Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, * Defendant-Appellee. No. 12-1412 (D.C. No. 1:10-CV-02237-WYD) (D. Colo.)

ORDER AND JUDGMENT **

Before O’BRIEN , McKAY , and BALDOCK , Circuit Judges.

Gary Allen Kemper, appearing pro se, fi led suit in the Unite d States District

Court for the District of Co lorado, challenging the Commissi oner of Social Security’s final decision denying him disability bene fits. During those proceedings, Kemper

* In accordance with Rule 43( c)(2) of the Federal Rules of Appellate Procedure, Carolyn W. Colvin is substituted for Michae l J. Astrue as the defendant-appellee in this action.

** After examining the briefs and appellate record, this pane l has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 28, 2013

Elisabeth A. Shumaker Clerk of Court- 2 - filed a “Motion To Cite Supplemental Au thority, R., Vol. 2 at 53-54, which the district court granted on Oc tober 18, 2011. On January 6, 2012, Kemper filed a motion asking the court to revi ew documents he attached to the motion and to issue a ruling. On June 14, 2012, the court en tered an order revers ing and remanding the case to the agency for furthe r proceedings. It also gran ted the January 6 motion to the extent Kemper asked the court to revi ew the attached documents but otherwise denied the motion. On June 15, 2012, the court entered a separate final judgment. On August 24, 2012, Kemper filed a “mot ion to attach to new case,” in which he asked the district court to review prev iously filed documents and an administrative law judge’s decision regard ing experts in Japan. Id. at 343-44. He also asked the court to clarify its June 14 orde r to the extent it granted in part and denied in part his January 6, 2012 motion. The court denied the “motion to attach to new case” on September 25, 2012, because it no longer had jurisdic tion over the case. On October 17, 2012, Kemper filed a notice of appeal, stating he was appealing from the “order to cite supplemental authority,” which he incorrect ly identified as having been entered on October 16, 2012 (the district co urt entered no order in his case on that date). Id. at 355. In his opening appellate brie f, Kemper states th e correct date of that order, October 18, 2011. The Commissioner argues that we lack jurisdiction over this appeal because the notice of appeal is untimely. We agree. A “timely noti ce of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell , 551 U.S. 205, 214 (2007).- 3 - Where, as here, a United States officer or employee is sued in an official capacity, a civil litigant must file a notice of appeal within 60 days after the entry of the judgment, order, or decree app ealed. 28 U.S.C. § 2107(a), (b)(3); Fed. R. App. P. 4(a)(1)(B)(iii). Kemper filed his notice of appe al on October 17, 2012, nearly one year after the order identified in his notice of appeal and more than 60 days after the district court’s entry of judgment on June 15, 2012. Kemper did not seek an extension of the time to file his notice of app eal. Hence, the notice of a ppeal was clearly untimely as to both the October 18, 2011 order and th e court’s final judgment. And for two reasons, we see no basis that the “motion to attach to new case” tolled the time for filing a notice of appeal from the court’s final judgment under Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure. First, it is not clear that the motion sought any of the relief available through the pos t-judgment tolling motions listed in Rule 4(a)(4)(A). Second, even if it did s eek such relief, the motion was filed 70 days after the entry of judgment and therefore out side of the applicable deadlines for any of the Rule 4(a)(4)(A) tolling motions. Finally, although Kemper’s notice of a ppeal could be considered timely as to the district court’s order denying his “mot ion to attach new cas e,” we see nothing in the notice of appeal or Kemper’s appellate filings suggesting his a ppeal is from that

order.- 4 - For the foregoing reasons, we dismiss this appeal for lack of jurisdiction. Kemper’s motion to proceed on appeal in forma pauperis ( ifp ) is granted. The grant

of ifp does not relieve him of his obligation to pay his appellate filing and docketing

fees in full.

Entered for the Court

Terrence L. O’Brien Circuit Judge