* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 4 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THOMAS E. SCHERER,

Plaintiff-Appellant, No. 03-3137

v. (D. Kansas) KENT HILL, in his individual capacity as Director of the Kansas City VA Medical Center and former Director of the Wichita, Kansas VA Regional Office; WILLIAM EMMOT, Dr., Chief of Staff Kansas City VA Medical Center; WAYNE HILL, in his individual capacity as Adjudication Officer Wichita, Kansas VA Regional Office, Defendants-Appellees. (D.C. No. 02-CV-2043-KHV)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and HARTZ , Circuit Judges.
After examining appellant’s brief and the appellate record, this court has determined unanimously that oral argument would notmaterially assist the-2-

determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. Proceeding pro se, Thomas E. Scherer appeals the di strict court’s decisions denying his Fed. R. Civ. 60(b) motion to vacate the judgment entered on September 20, 2002, and the district court’s decisi on denying his Motion to Reconsider Memorandum and Order Overruling A Motion to Reinstate A Case. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not aid in the disposition of this appeal.
See Fed. R. App. P. 34(a)(1)(c). The case is therefor e ordered submitted without oral argument. Moreover, after reviewing the recor d and the applicable law, we further conclude for substantially the same reasons set forth by the district court that the court did not abuse its discretion in deny ing Mr. Scherer’s motions.

I. BACKGROUND Mr. Scherer, an honorably discharged Navy veteran, filed this pro se action against Veterans Administration officials, challeng ing the denial of disability benefits. Mr. Scherer alleged that he contracted achronic skin condition during his service and that he is entitled to a disability rating of 30 percent and corresponding benefits beginning in 1976. Mr. Sche rer further alleged that “the Veterans Administration provides no opportunity fora claim to be decided by a-3-

jury trial and that failure is in violation of the United States Constitution right to a jury trial for claims of equity.” Rec. doc. 1, at 4 (Complaint, filed Jan. 31, 2002). On September 17, 2002, the district court issued a memorandum and order dismissing Mr. Scherer’s complaint. The court reas oned that “federal law regarding veterans’ benefits provides that decision s regarding veterans’ benefits are unreviewable in the federal district courts.” S cherer v. Hill , No. 02-2043- KHV, 2002 WL 31109699, at *1 (D. Kan. Sept. 17, 200 2) (internal quotation marks omitted). The court added that Mr. Scherer h ad not shown that he could sue the defendants for actions taken in their offic ial capacities. Id. The court entered a final judgment in favor of the defendants on September 20, 2002. Mr. Scherer filed a separate action against the Uni ted States alleging similar claims. In that case, the district court a lso dismissed the complaint
See Scherer v. United States , No. 01-2428-JWL, 2002 WL 299315 (D. Kan. Feb. 15, 2002). Mr. Scherer appealed that dismissal, an d this Court affirmed in part, and vacated and remanded in part. In particular, w e concluded that the district court had subject matter jurisdiction to consider M r. Scherer’s constitutional challenge to 28 U.S.C. § 1346(d), which provides th at “ [t]he district courts shall not have jurisdiction under this section of any civ il action or claim for a pension.”-4-

See 28 U.S.C. § 1346; Scherer v. United States , No. 02-3067, 2003 WL 191463 (10th Cir. Jan. 29, 2003). On February 4, 2003, Mr. Scherer filed a motion to vacate the September 20, 2002 judgment pursuant to Fed. R. Civ. P. 60(b) . Mr. Scherer invoked this court’s decision in the related case— Scherer v. United States , No. 02-3067 —arguing that, as in that case, the claims regardin g the constitutionality of § 1346(d) should be allowed to proceed. The district court denied Mr. Scherer’s Rule 60(b) motion. See Scherer v. Hill , 213 F.R.D. 431 (D. Kan. 2003). The court reasone d that the motion was untimely. See id. at 433-34 (“A Rule 60(b)(1) motion cannot be used to challenge a substantive ruling of the Court unless it is file d within the time frame required for filing a notice of appeal. The Clerk entered j udgment on September 20, 2002 and plaintiff did not file his Rule 60(b) motion un til February 4, 2003.”) (internal quotation marks and citations omitted). The court also observed that Mr. Scherer “ha[d] not alleged an obvious error of law within t he meaning of Rule 60(b)(1).” Id. at 434. Finally, the court reasoned, Mr. Scherer was not entitled to relief under Fed. R. Civ. P. 60(b)(6). See id. at 434-35 (“[T]he broad power granted by clause (6) is not for the purpose of relieving a pa rty from free, calculated and deliberate choices he has made. A party remains un der a duty to take legal steps to protect his own interests. [Mr. Scherer] volunta rily elected not to appeal the-5-

Court’s judgment in this case. Rule 60(b)(6) relie f is therefore inappropriate.”) (internal quotation marks and citations omitted). Mr. Scherer then filed a Motion to Reconsider Memor andum and Order Overruling a Motion to Reinstate The Case. The dis trict court denied that motion as well. See Scherer v. Hill , No. 02-2043-KHV, 2003 WL 21011361 (May 1, 2003).

II. DISCUSSION On appeal, Mr. Scherer challenges the district court’s denial of his Rule 60(b) motion to vacate and his Motion to ReconsiderMemorandum and Order Overruling a Motion to Reinstate The Case. “We rev iew the district court’s denial of a Fed. R. 60(b) motion to vacate for an a buse of discretion,” mindful that Rule 60(b) relief “is extraordinary and may on ly be granted in exceptional circumstances.” Servants of the Paraclete v. Does , 204 F.3d 1005, 1009 (10th Cir. 2000) (internal quotation marks omitted). Forsubstantially the same reasons set forth by the district court, we discern no abus e of discretion here. Because a Rule 60(b) motion cannot be used as a substitute fo r an appeal, Mr. Scherer’s challenge to the dismissal of his complaint was unt imely. Orner v. Shalala , 30 F.3d 1307, 1309-10 (10th Cir. 1994). Moreover, as the district court observed “based on the Tenth Circuit remand in Scherer v. Un ited States , supra , [Mr.-6-

Scherer] has an available forum for his constitutio nal challenge to 28 U.S.C. § 1346(d). [Mr. Scherer] has not shown why he is ent itled to challenge the same statutory provision in multiple cases, or how he wi ll be prejudiced if that opportunity is denied him.” Scherer , 213 F.R.D. at 435.

III. CONCLUSION Accordingly, we AFFIRM the district court’s decisio ns denying Mr. Scherer’s Rule 60(b) motion to vacate and his Motio n to Reconsider Memorandum and Order Overruling a Motion to Reinstate the Case.

Entered for the Court,

Robert H. Henry Circuit Judge