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Patricia Hernandez appealed the district court’s denial of her Federal Rule of Civil Procedure 60(b) motion challenging the grant of summary judgment to the Pueblo County Department of Human Services in her employment discrimination suit.
PCDHS employed Hernandez as a technician beginning in 2015. In November 2018, Hernandez applied for an internal transfer to a legal technician position in the child support service division. PCDHS denied the transfer. After resigning in January 2019, Hernandez filed suit against PCDHS under the Americans with Disabilities Act.
PCDHS moved for summary judgment, stating Hernandez wasn’t qualified for the legal technician position because she failed to satisfy a job requirement. On Sept. 21, 2021, the district court granted the motion for summary judgment. Hernandez filed a notice of appeal, but then she voluntarily dismissed that appeal and pursued relief in the district court under Rule 60(b). After the district court denied her Rule 60(b) motion Sept. 26, 2022, she filed two more notices of appeal, one from the decision granting summary judgment to PCDHS and one from the denial of the Rule 60(b) motion.
The 10th Circuit Court of Appeals summarily dismissed the first appeal as untimely and considered the second.
Although this appeal is from the denial of the Rule 60(b) motion, the 10th Circuit noted Hernandez’s opening brief scarcely mentions that motion. Instead, it challenged the district court’s grant of summary judgment to PCDHS — a decision not before the 10th Circuit in this appeal. By failing to make any argument regarding the Rule 60(b) motion in her opening brief, the 10th Circuit determined Hernandez waived her opportunity to bring any such challenges.
In her reply brief, Hernandez recognized her error in focusing on the summary judgment order and repeats the Rule 60(b) arguments she raised in the district court. But “[t]he general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief.” according to a 2011 10th Circuit decision in Reedy v. Werholtz. Hernandez also repeated her arguments to the district court, without addressing the reasons the court rejected them.
The 10th Circuit ruled when an appellant fails to argue how the district court erred, it must affirm.
Also in her reply brief, Hernandez requested leave to amend her opening brief to focus on the Rule 60(b) decision. But the 10th Circuit denied this request because the rules require litigants to raise their arguments in their opening brief, and they don’t provide an opportunity to re-brief an appeal.
The 10th Circuit also denied Hernandez’s motion to proceed without prepayment of fees and costs because it determined she failed to present a non-frivolous argument challenging the decision on appeal.
The appeals court affirmed the district court’s judgment.